Ensuring your business is compliant with immigration rules – right to work checks

What is a Right to Work Check? All employers in the UK have a responsibility to have processes in place to prevent illegal working within their organisation.

A right to work check is now a mandatory part of the ‘onboarding’ process for employers, to verify an individual’s legal right to work in the UK, before their employment begins. If an individual’s right to work is time-limited, you should conduct a follow-up check shortly before it is due to come to an end. This area of law has been subject to many reforms over the last five years, so it is important to regularly review the guidance. The Home Office guidance on carrying out compliant right to work checks can be found here.

The Home Office requires employers to conduct right to work checks on all employees before their employment begins, regardless of nationality. The type of check required will depend on the candidate’s nationality and the type of permission that they have to work in the UK. For example, British or Irish citizens can use their passport, or a UK birth or adoption certificate, accompanied by an official document confirming their National Insurance number.

Why do we need to carry out Right to Work Checks?

If you are found to be employing someone illegally and you have not carried out a compliant right to work check, your organisation may face the following sanctions:

• Civil penalty of up to £60,000 per illegal worker.
• Criminal conviction carrying a prison sentence of up to five years and an unlimited fine, if you knew or had reasonable cause to believe that the worker did not have permission to work.
• Closure of the business.
• Disqualification as a director.
• Revocation of sponsor licence or prevention from sponsoring workers in the future.
• Seizure of earnings made as a result of illegal working.
• Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector.
• You may also appear in the publication of non-compliant employers.

A statutory excuse is an employer’s defence against a civil penalty. In order to establish a statutory excuse in the event that an employee is found to be working illegally, you must have carried out a compliant Right to Work Check.

Types of Right to Work Checks

There are different ways to carry out a Right to Work check depending on the circumstances which are as follows:

• Manual Right to Work Check.
• Online Right to Work Check.
• A Right to Work Check using IDVT via the services of an IDSP (British and Irish citizens only).
• Contacting the Employer Checking Service where an individual has an outstanding application, administrative review or appeal.

The following list sets out what employers need to check when conducting a Right to Work Check:

• The documents are genuine, original, and unchanged.
• The photos look like the applicant.
• The dates of birth match across all documents.
• If there are different names across documents, the applicant has supporting documents to explain the difference.
• The documents are in the employer’s physical possession.
• The employer records the date of the check and keeps a secure record.
• The employer keeps copies of all documents securely for the duration of the employee’s employment and for two years after.

Who is responsible for ensuring the appropriate Right to Work checks have been carried out?

Employers, including their Human Resource staff and those staff within the same business with delegated responsibility for the recruitment and employment of individuals, should make sure they understand their responsibility to correctly carry out right to work checks, and, therefore, ensure compliance with the law.
This includes employers who employ staff under a contract of employment, service or apprenticeship, whether express or implied and whether oral or in writing. Where the worker is not your direct employee (for example, if they’re self-employed), you are not required to establish a statutory excuse, but you must still carry out Right to Work Checks (and retain evidence you have done so) to comply with your sponsor duties.

Retaining evidence

You must keep a record of every document you have checked and/or every online check that you have completed. This can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a jpeg or pdf document. You should keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you. The file must then be securely destroyed.

You should also be able to produce these document copies quickly if you are requested to show them to demonstrate that you have performed a right to work check and retain a statutory excuse.

You must also make a note of the date on which you conducted the check and who the check was completed by. This can be by either making a dated declaration on the copy or by holding a separate record, securely, which can be shown to us upon request. This date may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’ or a manual or digital record may be made at the time you conduct and copy the documents which includes this information. You must be able to show this evidence if requested to do so to demonstrate that you have established a statutory excuse. You must repeat this process in respect of any follow up check.

You may face a civil penalty if you do not record the date on which the check was performed. Simply writing a date on the copy document does not confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.

Who is liable if Right to Work Checks are not carried out?

As the employer, you (and not the members of your staff carrying out the checks, whether they are your employees or workers engaged by your business) are liable for the civil penalty in the event of illegal working, where compliant right to work checks have not been carried out. Appropriate training is therefore essential for all members of staff who have responsibility for carrying out these checks, regardless of the size of the organisation.

We offer training to employers on carrying out right to work checks in line with the law in this area, so please do get in touch if this is something that would be of benefit to your organisation.

The Home Office has increased its vigilance on compliant right to work checks and illegal working. It has therefore never been more important to ensure you get this right and you can access expert immigration advice where needed.