Right to Work Checks
If you conduct a right to work check in line with the requirements (both before the employment begins and also when the employees right to work in the UK has expired (if they have a temporary right to work section)), you will have a statutory excuse/defence against liability for a civil penalty/fine in the event you are found to have unknowingly employed someone who is an illegal worker. This means that if UKVI find that you have unknowingly employed someone who does not have the right to do the work in question, but you have correctly conducted right to work checks as required, you should not receive a civil penalty for that illegal worker.
Right to work checks have been temporarily adjusted due to coronavirus (COVID-19). This is to make it easier for employers to carry them out. More information can be found on the GOV.UK website
Ukrainian Sponsorship Scheme
Guidance for employers on completing right to work checks for Ukrainian nationals in the UK under the Ukrainian Sponsorship Scheme has been published and is available here.
There are numerous different ways to conduct a right to work check in line with the guidance. From the 6th April 2022 you can do :
- A manual hard copy right to work check;
- An online right to work check (which is compulsory for those recruits with status under the EU Settlement Scheme, Frontier Worker Permits or a Biometric Residence Card or Permit;
- A Digital Identity Service Provider for those with a British or Irish Passport; or
- An adjusted COVID-19 right to work check (for employment which begins before 30th September 2022).
Whichever way you do the check, you should confirm the person’s right to work in the UK prior to them starting to work for you, regardless of their country of origin. You should also do a follow up check when the employee's right to work expires (if they have a temporary right to work in the UK). Further details on this are in the Employer Guidance on Right to Work Checks.
The Home Office has issued a right to work checklist to help with checking eligibility to work. You can ask the person to provide documents specified on one of two lists identified by the Home Office, which can be found in the Employer's Guidance to Right to Work Checks. Documents must be originals (unless an online or digital check is being carried out).
Manual Checks - Ensuring documents are genuine and relevant
As an employer you must take all reasonable steps to ensure documents provided by the person are genuine and that they relate to the applicant.
You must check:
- The photo is consistent with the appearance of the applicant or employee.
- The date of birth is consistent across documents and corresponds with the applicant or employee’s appearance.
- The document provided is valid and has not expired.
- Any government endorsements (eg stamps, visas etc.) to ensure the individual is permitted to do the specified type of work.
- If accepting original documents, you should ensure that they are genuine, not tampered with and belong to the person presenting them.
- In the case of two documents with different names on them, ask for a third document to explain this change. For example, a marriage certificate, divorce decree, statutory declaration of name change etc.
For details on what you should check for digital or online right to work checks please see the guidance here.
Make copies or retain confirmation of check
If you are undertaking manual, hard copy check, you should make copies of the documents provided and sign and date them. You should retain copies of the documents securely in the employee’s personnel file for the duration of their employment and for at least 2 years after the employment ends.
In the case of a passport or other travel document, the following parts must be photocopied or scanned:
- The document’s front cover and any page containing the holder’s personal details. In particular copy any page that provides details of nationality, photograph, date of birth, signature, date of expiry or biometric details.
- Any page containing UK Government endorsements indicating that the employee has an entitlement to be in the UK and is entitled to do the work in question.
- All other documents should be copied in their entirety.
If you are undertaking an online check or using Digital Identity Service Provider you should retain the relevant documentation provided when undertaking the check in line with the right to work guidance.
Employer Checking Service
Where your employee cannot provide the documents from the list of acceptable right to work documents in the guidance, potentially because they have made an application for the Home Office and are waiting for their documents to be returned, you can ask the Home Office to confirm their right to work. The Home Office offer a free checking service for employers and if this confirms the person has a right to work it means that you can employ them for 6 months before carrying out another right to work check (subject to the employee's visa not being rejected in that 6 months).
If you use the Home Office checking service you must keep copies of any correspondence you receive from them in line with the guidance to obtain a statutory excuse.
Full information on the Employer checking Service can be found in the comprehensive guidance,
Not all documents are acceptable for Right to Work purposes, the full list of documents can be found in the guidance.