All UK employers, irrespective of size or sector, are required by law to ensure that any prospective and existing employees are legally entitled to work in the UK and to undertake the work in question. Failure to check and verify an employee’s proof of right to work in the UK prior to the start of employment, or to repeat that check for employees with temporary or restricted right to work in the UK, can result in a civil penalty or even criminal prosecution.
By correctly checking (and where necessary rechecking) an employee’s proof of right to work in the UK, you will be able to establish and retain either a continuous or time-limited statutory excuse in the event that the individual employed is found to be working illegally.
If you fail to carry out the prescribed document checks correctly, or at all, and you are found to be employing someone illegally, you may incur a civil penalty of up to £20,000 per illegal worker. You will also be unable to rely on any statutory excuse if you knew or it was reasonably apparent that the document was false, did not rightfully belong to the holder or the work was not permitted – regardless of whether you have carried out any document check.
You may also be liable to criminal prosecution if you know, or have reasonable cause to believe, that the individual does not have permission to work in the UK or to undertake the work in question. On conviction for employing an illegal worker you may face up to 5 years’ imprisonment and/or an unlimited fine.
How to check an employee’s proof of right to work in the UK
There are a number of steps, prescribed by the Home Office, that employers must follow in order to verify an employee’s proof of right to work in the UK:
- OBTAIN, ie; obtain an original document, or combination of documents, in accordance with the Home Office approved list (additional rules apply to student workers).
- CHECK, ie; check the validity of that documentation in the presence of the holder.
- COPY, ie; make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
- RECORD, ie; make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any follow-up checks must be made.
Note that right to work checks are to be carried out on all employers, irrespective of nationality. Inconsistent application of the checks, for example singling out employees of certain nationalities is a breach of the requirements and may result in allegations of discrimination.
When verifying an employee’s proof of right to work in the UK you should retain copies and records of the checks for the duration of the individual’s employment and for a further two years after they leave. Failure to meet these record-keeping duties is considered a breach of your duties and as such, qualifies as grounds for a civil penalty.
Checking the validity of proof of right to work in the UK documents
When checking the validity of an employee’s proof of right to work in the UK, you must ensure that:
- the documentation is genuine, original and has not been tampered with.
- the person presenting the documentation is the rightful holder.
- the photographs and dates of birth are consistent across multiple documents and with the individual’s appearance.
- the expiry dates for permission to be in the UK have not passed and any work restrictions still permit the type of work, including any limit on the number of hours the individual is allowed to work.
- there is an explanation for any difference in names across multiple documents. You should seek further documentation to explain any differences, eg, an original marriage certificate or divorce decree. Any further documents must also be copied and retained.
While you are not expected to be an expert in identifying fraudulent documentation, right to work training for personnel who are performing the checks, such as HR staff and site managers, can help to ensure your staff can meet the requirement to identify fraudulent documents that are ‘reasonably apparent’ to not be genuine or not belong to the holder.
What is the Employer Checking Service?
You will need to verify an employee’s right to work in the UK with the Home Office Employer Checking Service in the following three circumstances:
- you are presented with a Certificate of Application which is less than six months old and which indicates that work is permitted.
- you are presented with an Application Registration Card stating that the holder is permitted to undertake the work in question.
- you are reasonably satisfied that your employee has submitted an application to extend or vary their permission to be in the UK prior to the date on which permission expired, or has an appeal or administrative review pending a decision.
If in these circumstances the ECS verifies the prospective employee has permission to work in the UK and to undertake the work in question you will receive a ‘Positive Verification Notice’. If you receive a Negative Verification Notice you may be liable for a civil penalty, or even criminal prosecution, if you still proceed to employ the worker.
When to check an employee’s proof of right to work in the UK
Assumptions should never be drawn as to an individual’s entitlement to work in the UK or to undertake the work in question. Proof of right to work in the UK should be obtained from all prospective employees – regardless of their race, ethnicity or nationality.
Where the documentation provided by the employee falls within List A of the Home Office approved documents (ie; proof of a permanent and unrestricted right to work in the UK), you will not be required to repeat any check. If the employee provides documentation falling within List B (ie; evidence of time-limited or restricted permission to work in the UK), you will be required to recheck that individual’s immigration employment status where any existing permission expires during the course of their employment with you.
The point at which permission expires will, in turn, depend upon whether the documentation falls within Group 1 or Group 2 of List B.
Group 1 documents include any current passport, biometric residence permit, residence card or immigration status document which shows that the employee is allowed to stay in the UK and undertake the type of work in question. Here you will need to recheck their proof of right to work when permission as set out in that document expires.
Group 2 documents refer to those circumstances in which an employee has been unable to produce suitable proof because of a pending application, appeal or administrative review of a decision by the Home Office. Here, you will need to recheck the employee’s proof of right to work in the UK after six months from the date set out in the Positive Verification Notice.
Who must check an employee’s proof of right to work in the UK?
The responsibility of checking an employee’s proof of right to work in the UK rests with you as the employer. You cannot delegate this responsibility to a third party, such as a recruitment agency.
Should I seek legal advice about proof of right to work in the UK?
The consequences of failing to check an employee’s proof of right to work in the UK, or to do so correctly, can have serious consequences for you individually, as well as your business. This includes tough civil and criminal sanctions, as well as potential disruption to your business by way of loss of staff or even a possible closure notice. Any failure to comply with the law could also result in loss of sponsor status and revocation of any licence to employ overseas workers.
Securing expert legal advice from an experienced immigration specialist can help you to avoid the procedural pitfalls, ensuring that you remain compliant at all times with the law.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Before acting on any of the information contained herein, expert legal advice should be sought.