Under the Immigration, Asylum and Nationality Act 2006, all employers are required to meet their duties to prevent illegal working in the UK by carrying out checks to ensure that anyone who applies to them for employment has the right to work in the UK.
Illegal working penalties for employers
Illegal working can come in many different forms. Generally speaking, an illegal worker is an individual who is subject to immigration control, aged 16 years or older, and does not have the requisite permission to carry out the work they are being employed to do, or to enter or remain in the UK.
The UK immigration rules place duties on all UK employers to carry out right to work checks to identify such individuals and bring them to the attention of the Home Office.
These checks should be carried out on all new employees – regardless of their nationality, gender or race – before they begin work with you. Employing a British worker carries the same responsibility to carry out right to work checks as are required for an overseas worker. Indeed, only carrying out checks on certain individuals based on their race or nationality may be classed as unlawful discrimination.
Should an employer fail to carry out these checks, or if they carry them out in an incorrect or ineffective manner, and are subsequently found to be employing an illegal worker, a fine known as a civil penalty may be issued under section 15 of the 2006 Act.
The Home Office can issue civil penalties of up to £20,000 for each illegal worker, with no limit on the number that can be served on the employer. The employer may also face imprisonment if they are found to have knowingly employed an illegal worker.
Given the financial and reputational damage associated with illegal working, employers are advised to review their right to work processes to ensure continued compliance with the rules.
By carrying out right to work checks in one of the ways stipulated under the Home Office guidance for employers, employers may be able to rely on the statutory defence to any allegations of illegal working. Should an individual transpire not to be eligible to work in the UK, provided the employer can prove they have conducted compliant right to work checks, they should be able to avoid a civi penalty for illegal employment.
How to carry out right to work UK checks
There are several ways employers can carry out compliant right to work checks on workers:
- Manual right to work checks
- Right to work digital checks using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP)
- Right to work online checks using share codes
- Right to work online checks using the Home Office Employer Checking Service (ECS)
Manual right to work checks
There are three stages to this process that employers should follow to be compliant with their right to work duties, as prescribed by the Home Office:
- Obtaining the required documents,
- Checking the documents and
- Making a record of the checks.
You must ensure that any employee has the correct right to work documents that belong to them, that any time limit on the right to work documents has not expired, that they have permission to carry out the type of work you wish to employ them for, and that they are allowed to work the contracted hours you wish to employ them for.
By carrying out these checks, you are protecting yourself from the possibility of paying a civil penalty, should an allegation of illegal working or immigration non-compliance arise.
1. Obtain valid right to work documents
The prospective employee should provide you with the original documents. Copies are not acceptable.
Right to work documents should show an ongoing right to work in the UK or that the holder has a right to work in the UK for up to 12 months.
List A: Documents which show an ongoing right to work in the UK:
- A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
- A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.
- A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
- A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
- A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
- A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
- A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
- A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
List B group 1: Documents which show a time-limited right to work. A follow-up check is required when the document evidencing permission to work expires.
- A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
- A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
- A current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
List B group 2: Documents which show a time-limited right to work in the UK for up to six months from the date specified in the Positive Verification Notice. A follow-up check js required when this notice expires.
- A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU (J) to the Jersey Immigration Rules or Appendix EU to the immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service.
- An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
- A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
2. Check that the documents are genuine and valid
For each document that the prospective employee supplies as proof of their right to work in the UK, you must check that:
- any photographs are a good likeness with the person, and are consistent across all documents
- dates of birth are consistent across all documents and that you are happy that the dates match with the person
- any time limited permission to enter or remain in the UK has not expired
- any UK immigration endorsements, such as a visa or biometric residence permit, are still
- valid and allow the person to carry out the type of work you are offering, including any limitations on the number of hours they can work
- all documents are genuine and have not been altered
- any discrepancies of name, where different names appear on documents, are satisfactorily explained, for instance by producing a marriage certificate
3. Take & retain a copy of the document that cannot be altered
This may be a photocopy or a scan. Where using an electronic copy, a non-rewritable format must be used. Take a copy of any relevant pages or parts of the documents. For some documents, this will be the document in its entirety.
For each prospective employee, you should keep:
- a copy of all right to work documents and supporting evidence
- a record of any communications
- a record of the final decision on whether the right to work in the UK is in place
- a note of the dates the check was carried out and finalised
This record should be retained during the worker’s employment with you and for two years after their employment finishes. It is your responsibility to check that your employees have a continuing right to work in the UK. It is a crime to continue to employ someone whose right to work in the UK has expired.
Digital right to work checks
Employers now have the option to conduct online verification checks on British and Irish citizens with a valid passport using a so-called Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP).
Under this option, the employer engages an IDSP to carry out checks of workers’ passports. The Home Office has published a list of certified IDSPs but this is not mandatory and it remains at the employer’s discretion to select a provider that can meet the requirement.
The employer remains obligated to check that the output of the IDVT check is consistent with the individual being verified, eg that the photograph matches the person presenting themselves for employment, and to retain a copy of the IDVT identity check throughout employment and up to two years after the employment has ended.
Importantly, employers using IDSPs are advised that the statutory excuse against liability for illegal working may not be available where the provider of the digital checks has used manual or online checks as part of their digital process.
Share codes for online right to work checks
Employers can conduct online right to work checks for workers holding certain types of immigration status, including those with status under the EU Settlement Scheme and workers with an E-visa. Those with a Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or a Frontier Worker Permit (FWP) must have their eligibility verified using the online service.
Share codes are nine-character alphanumeric codes that are created when an individual gives their (prospective) employer permission to view their status on the Home Office checking system.
The employer then inputs the code under the ‘View a job applicant’s right to work details’ section of the Home Office checking service to verify their status. The employer must then retain a copy of the verification for their records.
Where a worker’s BRP expires 31 December 2024 but their permission extends beyond this, the employer should use the expiry date stated on the online system. This is due to BRPs being phased out by the end of 2024.
Employer Checking Service
The Employer Checking Service (ECS) is a Home Office service that can be used by employers to confirm that a prospective employee has a continuing right to work in the UK where a manual or digital check is not possible. This could be due to:
- the employee being unable to provide their documents, for instance, if their documents are currently with the Home Office
- the employee having an application registration card
- the employee having a certificate of application
You will need to obtain the employee’s permission before using the ECS to check their right to work in the UK.
The ECS will require the employee’s full name, date of birth, nationality, job title (or prospective job title), weekly hours to be worked, home address, and their Home Office reference or case ID if they have those.
You should also provide your business name, business type, and business contact information.
What to do when a person does not have the right to work in the UK
If after carrying out the document checks, you discover that the prospective employee does not have the right to work in the UK, you must refuse to employ them.
The responsibility is with that person to obtain the right to work in the UK and prove that right to you, should they wish to take up the employment you are offering.
Right to work UK FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute tax, financial or legal advice, nor is it a complete or authoritative statement of the rules and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert tax, financial, legal or other advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
