In the ever-changing UK employment landscape, understanding immigration laws and ensuring you are legally compliant when employing people is crucial for legal, fair and operational success.
This guide will help employers conduct efficient right-to-work checks. Whether you're in HR or a business owner, we'll discuss the process of checking right-to-work in the UK and the laws surrounding it.
What is right-to-work?
"Right-to-work" refers to the legal authorisation individuals need to work in the UK. Immigration laws govern it, and is in accordance with the Immigration, Asylum and Nationality Act 2006.
The right-to-work check is a process that employers must undertake before employing someone. This involves checking documents, like a passport, to ensure individuals have the right visa or immigration status.
Failure to carry out proper right-to-work checks can result in penalties for employers if they are found to be employing individuals who do not have the legal right to work in the UK.
Right-to-work checks for EEA citizens
EEA citizens and their family members must have immigration status in the UK. An EEA passport or national identity card is no longer enough to prove their right to work, as it only confirms their nationality. They must provide evidence of lawful immigration status like other foreign nationals.
The EU Settlement Scheme (EUSS) was established to enable EU, EEA and Swiss citizens resident in the UK by 31 December 2020, as well as their family members, to get the immigration status they need to continue to live, work and study in the UK.
Retrospective checks are not required for EEA citizens employed on or before 30th June 2021. If initial checks were done as per the applicable guidance, you'll maintain a continuous statutory excuse against civil penalties.
If you identify an EU citizen that you have employed who has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK there is some information and guidance you can share with them to help.
If an EU citizen has reasonable grounds for missing the EUSS application deadline, they can be given a further opportunity to apply. Full guidance has been published (Annex C) on the steps you should take as an employer if this situation arises. As always, advise them accordingly that they must make an application within 28 days.
If you choose to conduct retrospective checks, ensure they are done in a non-discriminatory manner. The Code of Practice for employers guides avoiding unlawful discrimination when conducting right-to-work checks.
It is worth nothing that Irish citizens can continue to use their passport or passport card to prove their right to work.
Illegal working and the law
Illegal working involves individuals, often foreign nationals, engaging in employment without the legal right or proper documentation required by the UK's stringent immigration laws.
The UK's immigration laws dictate the right-to-work, and non-compliance can result in severe consequences for employers and employees. Thorough right-to-work checks are mandatory before hiring; they require verification of immigration status through documents such as passports and residence permits.
Knowingly hiring individuals without the right to work can lead to substantial penalties, including fines and potential imprisonment for employers. Not only that, but individuals found working illegally may face deportation, fines, and restrictions on future entry into the UK.
Employers are encouraged to conduct meticulous right-to-work checks, adapting to changes post-Brexit, especially concerning EU and EEA citizens' right to work. Reporting mechanisms are in place for suspected illegal working, promoting a collaborative effort to maintain the integrity of the UK's immigration system.
Government initiatives aim to educate employers and employees on the consequences of illegal working, fostering a culture of compliance.
Read the guidance for Recruiting People From outside the UK to ensure you have the most up-to-date information.
Individuals facing immigration-related challenges, including potential illegal working situations, can benefit from seeking legal advice. Legal professionals offer guidance on navigating the complexities of immigration law.
How to Check Right to Work in the UK
Here's a step-by-step guide on how employers can navigate this process effectively:
1. Check Original Documents: Begin by closely examining the original documents provided by the prospective employee. This includes passports, biometric residence permits, or any other official documentation proving their right to work in the UK.
2. Take Copies: Make clear, legible copies of each relevant page once the original documents have been verified. Ensure the copies accurately replicate the original documents' content and any applicable endorsements.
3. Using an Identity Service Provider: Consider utilising services provided by Identity Service Providers (ISPs) to streamline the verification process. These providers can offer additional layers of authentication, enhancing the reliability of your right-to-work checks.
4. Online Right-To-Work Checks: Embrace the convenience of technology by incorporating online right-to-work checks into your process. The UK government provides an online service that allows employers to verify an individual's right to work instantly, simplifying the procedure.
What documents are acceptable for right-to-work checks?
The common documents that are typically accepted for right-to-work checks are:
Passport: A current and valid passport issued by a recognised government.
Biometric Residence Permit (BRP) or Biometric Residence Card (BRC): A valid BRP or BRC indicating the individual's right to work in the UK.
Full Birth or Adoption Certificate: This can be accepted with evidence of National Insurance number.
Certificate of Application: A certificate issued by the Home Office indicating that the individual has permission to work in the UK.
Full List A Documents (Permanent Right to Work): This includes documents such as a UK passport, a certificate of entitlement to the right of abode, or a residence card issued by the Home Office with an unrestricted right to work.
Full List B Documents (Time-Limited Right to Work): This includes documents such as a current passport, a national identity card with permission to work, or a biometric immigration document.
For additional insights on the overall immigration landscape, landlords and property managers can also benefit from understanding the importance of right to rent checks to comply with legal requirements and ensure responsible property management.
Right-to-work checks for time-limited right-to-work
For right-to-work checks for those with time-limited permission, it is important to carry out some extra checks and ensure documents and applications cover what is needed.
Check the Expiry Date: Examine the document provided by the employee to ensure it has not expired. This is crucial for individuals with time-limited permission.
Verify the Right to Work Duration: Check the document for any restrictions on the duration of the individual's right to work. Some visas or permits may allow work for a specific period, and employers should know these limitations.
Biometric Residence Permit (BRP) or Biometric Residence Card (BRC): Verify if the BRP or BRC is valid and covers the intended employment period. These documents indicate immigration status and right to work.
Certificate of Application: Some individuals may provide a certificate of application issued by the Home Office. Check the document's validity and ensure it grants the right to work during the application process.
Employer Checking Service: Employers can use the Home Office Employer Checking Service to verify an individual's right to work. This service allows employers to check their employees' current right to work using their share code.
Document Copies: Take clear copies of the documents provided by the employee. This is essential for record-keeping and demonstrating that the necessary right-to-work checks have been conducted.
Follow-Up Checks: Conduct follow-up checks nearing the expiry date for individuals with limited work permission is crucial. This ensures the validity of their right to work and facilitates compliance.
Stay Informed about Updates: Keep abreast of any updates or changes to immigration laws and right-to-work requirements. Immigration policies can evolve, and it's essential to ensure that your practices align with current regulations.
Communication with Employees: Encourage open communication about the expiration of their right to work. This allows smoother transitions and helps avoid unintentional breaches of immigration laws.
Penalties for not carrying out the correct right-to-work checks
There are various penalties and repercussions for non-compliance with right-to-work checks, including fines and in serious cases, criminal charges.
The penalties and repercussions include:
Civil Penalty:
Employers may face penalties for hiring individuals without the right to work in the UK. The severity of the breach determines the penalty.
Fines:
Fines for non-compliance can vary from hundreds to thousands of pounds per illegal worker. The amount may depend on factors like business size, frequency of non-compliance, and employer history of violations.
Criminal Charges:
In extreme cases of intentional non-compliance, employers may face criminal charges, potentially resulting in imprisonment.
Loss of Sponsorship License:
Licensed sponsors under the Points-Based System (PBS) may face consequences. Non-compliance with right-to-work checks can result in suspension or revocation of the sponsorship license, affecting the employer's ability to sponsor migrant workers.
Impact on Reputation:
Non-compliance can harm a business's reputation, leading to negative publicity and brand damage due to illegal employment practices.
What to do if an applicant cannot produce right-to-work documents
If an applicant cannot produce right-to-work documents, first Inform the applicant of the legal requirement to provide right-to-work documents and explain the potential consequences of non-compliance. Ensure that communication is clear, respectful, and inclusive.
You may need to provide some guidance on the documents acceptable for right-to-work checks if the individual is unsure. Share information on the proper forms of identification and immigration status documents as per the latest government guidelines.
Then, offer the applicant reasonable time to gather and produce the necessary documents. Consider the individual circumstances of the applicant, such as their immigration status and any challenges they may face in obtaining the required paperwork.
Be sure to keep detailed records of all communication and actions taken. This documentation can be really valuable in demonstrating that the employer took reasonable steps to comply with right-to-work regulations.
In some cases, an applicant may obtain the necessary documents. Employers may consider temporary alternatives, such as conditional job offers that are contingent upon the successful completion of right-to-work checks.
It is always recommended to seek legal advice to ensure compliance with employment and immigration laws. Legal professionals can provide guidance on the specific circumstances, potential risks, and available options.
An important point to note - ensure that the process is fair and avoids any discrimination. Treat all applicants consistently and avoid making assumptions about an individual's right to work based on appearance or other characteristics.
If applicants cannot produce right-to-work documents, it is important to review your internal procedures. Consider whether there are ways to improve communication, provide clearer information, or streamline the on-boarding process.
Know When to Withdraw Offer
Employers may need to withdraw the job offer if an applicant consistently fails to produce the required right-to-work documents within a reasonable time frame. This decision should be made in consultation with legal professionals to ensure compliance with employment laws.
What is a statutory excuse for right-to-work checks?
A 'statutory excuse' refers to a legal defence that an employer can use to demonstrate that they conducted the necessary checks to ensure that their employees have the right to work in the country. The Immigration, Asylum and Nationality Act 2006 sets out the legal framework for preventing illegal working in the UK.
To establish a statutory excuse, employers should carry out specific checks on their employees' immigration status before employing them, as discussed earlier. These checks typically involve verifying the identity and immigration status of the employee by examining and copying relevant documents, such as a passport or a residence permit.
If an employer follows the prescribed procedures and retains copies of the required documents, they may have a statutory excuse in case they are later found to have employed someone illegally.
This means that even if an employee is later discovered to have been working illegally, the employer may avoid certain penalties if they can demonstrate that they conducted the appropriate right-to-work checks at the time of hiring.
It's important for employers to stay informed about any updates or changes to immigration and employment laws to ensure compliance with current regulations. Employers can find detailed guidance in the UK Government's Code Of Practice for employers on conducting right-to-work checks that states:
'If you conduct the checks as set out in this guide and the code of practice, you will have a statutory excuse against liability for a civil penalty in the event you are found to have employed someone, who is disqualified from carrying out the work in question, by reason of their immigration status.'
When to contact the Home Office Employer Checking Service
You may consider reaching out to the Home Office Employer Checking Service for a number of reasons. Of course, you will want to ensure you have cross-referenced everything if you have any doubts or concerns regarding a potential employees' right-to-work.
Uncertain Document Verification: If an employer encounters difficulties in verifying the authenticity of a document presented by an employee during the right-to-work check, contacting the Home Office Employer Checking Service can provide clarification.
Ongoing Employment with Time-Limited Permission: For employees with time-limited permission to work, employers may contact the service as the expiry date approaches to confirm the continued validity of the individual's right to work.
Employee Unable to Produce Documents: Employers may use the service to check the individual's right-to-work status if an employee cannot produce the required right-to-work documents. This can be particularly useful when an employee is waiting for replacement documents or facing delays.
Confirmation of Statutory Excuse: Employers may use the service to obtain confirmation of their statutory excuse. This can be beneficial for ensuring that the right-to-work checks are conducted in alignment with current immigration regulations.
Resolving Discrepancies: In cases of discrepancies or uncertainties in an employee's right-to-work status, contacting the Home Office Employer Checking Service can help resolve any issues and provide clarity.
Employer Checking Service Request: Some employees may have a 'share code' generated through the Home Office online service. Employers can use this code to conduct checks and obtain up-to-date information on employees' right to work. However, contacting the service directly can also be an option.
Non-Standard Cases: For non-standard cases or situations not covered by routine right-to-work checks, employers may seek guidance from the Home Office Employer Checking Service to ensure compliance.
Right-to-work checks and discrimination
As mentioned above, in all employment cases it is crucial you treat all job applicants and employees equally, regardless of nationality or ethnic background. Discrimination based on race, nationality, or ethnicity is prohibited by law and you could face criminal charges if you do so.
To avoid stereotyping, when conducting right-to-work checks, avoid making assumptions based on an individual's appearance, name, or perceived nationality. Stereotyping individuals can lead to discriminatory practices.
Make sure that all job applicants are asked to provide the same types of documents for right-to-work checks. Applying consistent requirements helps prevent discrimination and ensures fair treatment for all.
Once you have the documents you need, verify them without bias. Treat each document with the same level of scrutiny, regardless of the individual's background. If additional documentation is required from an applicant, ensure that the request is based on job requirements and not on assumptions about the individual's immigration status or background.
If you have clear and non-discriminatory policies in place for right-to-work checks and train staff involved in the hiring process to follow these policies diligently, you can avoid discriminatory practices easily.
Make information about right-to-work requirements and procedures readily accessible to all employees. This includes providing information in different languages if necessary to ensure understanding.
Employers should seek legal advice to ensure that their right-to-work check processes comply with anti-discrimination laws. Legal professionals can provide guidance on best practices and help navigate complex situations.
As always, keep detailed records of the right-to-work check process. This includes applicant documentation and communication regarding right-to-work checks, including any decisions made based on the checks.
Contact Lawhive to get help with right-to-work checks
For help and advice on right-to-work checks and employment law, get a free case assessment from our expert team and a no-obligation quote for the help and guidance of our expert UK-based immigration solicitors and employment solicitors.