It is a legal requirement for all employers to conduct a right to work check before employing any worker, to ensure that the individual is legally allowed to work in the UK. Failure to follow the correct procedures and, as a consequence, employ an illegal worker can result in a fine of up to £20,000.
To ensure you are conducting the checks correctly, it is recommended that you use the:
• employers’ Right to work checklist to ensure you have correctly carried out all the steps you need to;
AND / OR
• online interactive tool Check if a document allows someone to work in the UK, which will take you through the process by asking you a series of questions.
Both will help you to confirm that you have undertaken each step correctly to establish your statutory excuse.
A brief summary is provided below regarding the legal checks and requirements for employing:
- Irish Citizens
- EU Citizens
- UK Citizens
Full guidance on how to complete Right to Work checks can be accessed here: An employer’s guide to right to work checks
- Irish Citizens
Irish citizens continue to have unrestricted access to work in the UK. From 1 July 2021, they can prove their right to work using their Irish passport or Irish passport card, or their Irish birth or adoption certificate 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.
Irish citizens can also apply for a frontier worker permit, this permit can be issued digitally or as a physical permit, so they may choose to prove their right to work using the Home Office online Prove your right to work to an employer right to work service or present their physical permit if they have one.
- EU Citizens
From 1 July 2021, EEA citizens and their family members require immigration status in the UK. They can no longer rely on an EEA passport or national identity card (which only confirms their nationality) to prove their right to work. They are required to provide evidence of lawful immigration status in the UK, in the same way as other foreign nationals.
There is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30 June 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.
Using the Online Checking Service
The online check will confirm the types of work that a job applicant is allowed to do and how long they can work in the UK for. The online service will also demonstrate that you have conducted the necessary checks.
To complete an online immigration status check you will need the job applicant’s:
- share code which they can obtain from: Prove your right to work to an employer
The job applicant will need to have one of the following to hand when generating their code:
- a biometric residence permit number
- a biometric residence card number
- a passport or national identity card
- their date of birth
Once you have been provided with the applicant’s share code and date of birth, you will then need to input the details into the UK government’s online checking service: View a job applicant’s right to work details
To check if someone’s original documents are acceptable
You will still be able to check someone’s original documents if they don’t have a UK immigration status that can be shared with you digitally. An online tool to help you check a job applicant’s original documentation is available at: Check if a document allows someone to work in the UK
IMPORTANT: Follow up checks
You need to recheck the right to work of those individuals who have time-limited permission to work in the UK. This should occur when their previous permission comes to an end.
The follow-up check is designed to prevent people from overstaying their immigration leave where this is time-limited.
When conducting follow-up checks, you may use either the manual right to work check or the online right to work check where applicable, irrespective of the type of check you conducted originally, before employment commenced.
- UK Citizens
Before employing a UK citizen, employers MUST check that the individual has the right to work in the UK and retain evidence of that right.
Step 1: Employers must see the original documents. UK citizens can still provide their passport, although if they don’t have one then they can provide alternative acceptable documents (such as 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.) The full list of acceptable documents can be found in Annex A, pages 35 to 36 of: An employer’s guide to right to work checks
Step 2: You must check that the documents provided are genuine and that the person presenting them is the prospective employee, the rightful holder and allowed to do the type of work you are offering.
You must check that:
- photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
- expiry dates for permission to be in the UK have not passed;
- any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
- the documents are genuine, have not been tampered with and belong to the holder; and
- the reasons for any difference in names across documents can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
Step 3: You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy.
You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, 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.
You must copy and retain copies of:
- Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
- All other documents: the document in full, including both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).