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Right to work checks and civil penalties

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Right to work checks post Brexit

Flora Mewies talks you through right to work checks post Brexit.

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Right to work checks for students

Flora Mewies talks you through right to work checks for students.

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Overview

What is a Right to Work Check?

A right to work check is a process followed by employers to check that their prospective employees have the right to work in the UK.

Who should carry out a Right to Work Check?

All employers should carry out right to work checks. It doesn’t matter how many employees you have, what industry you are in or what type of organisation you are.

Who should I carry out a Right to Work Check for?

Right to work checks should be carried out on all prospective employees. This includes British, EU, EEA and non-EEA nationals.

Assumptions should not be made about an individual’s right to work based on their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK. To do so could amount to discrimination for which compensation is uncapped in the Employment Tribunal.

Can I outsource the Right to Work Check?

In order to establish the statutory excuse and avoid a civil penalty if you are found to be employing an illegal worker, the right to work check must be carried out by the employer.

This means that you cannot rely on a third party performing the check for you, such as a recruitment agency.

Do I have to carry out a Right to Work Check for contractors and the self-employed?

You are not required to check the right to work of workers who are genuinely self-employed. This includes contractors who work under a contract for service.
You may however choose to check the right to work of contractors and those who are self-employed to avoid any negative PR which would come from them being illegal workers.

Should I check the Right to Work of apprentices?

Yes, those engaged under a contract of apprenticeship should have their right to work checked.

When should I carry out a Right to Work Check?

Right to work checks should be carried out before an individual’s employment begins.

If you are checking an employee’s right to work on their first day of employment, the check must be undertaken before their contractual start time and evidence of this should be retained.

It is good practice to make job offers conditional on the individual evidencing their right to work in the UK.

Evidencing RTW checks

What documents can I accept for a Right to Work Check?

UK Visas and Immigration has a specified list of documents which can be accepted to evidence an individual’s right to work. See the List A and B below.

Documents which are not described in List A or List B will not be sufficient to establish the statutory excuse.

List A
Documents in List A provide a continuous statutory excuse (i.e. no need to re-check right to work in the future)
1A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
2A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
3A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a European Economic Area country or Switzerland.
4A Permanent Residence Card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland.
5A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
7A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay 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.
8A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, 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.
9A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, 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.
10A certificate of registration or naturalisation as a British citizen, 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.
List B – Group 1
Documents in List B Group 1 provide a time-limited statutory excuse. This lasts until the expiry date of leave and so a subsequent check must be carried out before the expiry date.
1A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
2A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question.
3A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.
4A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, 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.
List B - Group 2
Documents in List B Group 2 provide a time-limited statutory excuse which lasts for 6 months. A subsequent check must be carried out before the 6 months expires.
1A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
2An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

 

Can a driving licence be used to evidence Right to Work?

No. It is a common misconception that a British citizen can provide their driving licence to evidence their right to work. This is not acceptable proof of right to work.

Can an expired passport be used to evidence Right to Work?

In some circumstances yes. For example, if the passport is being used to show that the individual is a British or European citizen, the passport does not need to be current. Please see List A above.

However some circumstances require the passport to be current. For example, if the passport contains evidence that the individual has obtained Indefinite Leave to Remain or if the passport includes an endorsement confirming the right to work. Please see List A and List B above.

How do I carry out a Right to Work Check?

The right to work check can be carried out online or using paper documents.

To carry out the check online:

The individual must share their online right to work record with you by providing a “share code”. This is then entered into the online Right to Work Checking Service which can be found here.

When reviewing the outcome of an online check, ensure that:

  • it confirms that the individual is allowed to work in the UK and perform the work in question
  • that the photograph and date of birth are consistent with the individual’s appearance, and
  • if the prospective employee is a student, appropriate additional information is retained.

The online checking service can be used by non-EEA nationals who hold biometric residence permits/cards and EEA nationals who have been granted immigration status under the EU Settlement Scheme. The right to work for individuals who fall outside these categories will need to be checked using paper documentation.

To carry out the check using paper documentation:

Request original right to work documents from List A or List B from the individual.

Once received, check that the documents are valid in the presence of the individual in question. To do this you should check:

  • the expiry date of the document
  • that the photograph and date of birth are consistent with the individual’s appearance
  • that the name on the document matches the name provided in the job application and any other documents provided
  • that the document does not restrict the individual from performing the work in question
  • the genuineness of the document to ensure that it has not been forged or been tampered with, and
  • if the prospective employee is a student, appropriate additional information is retained.

Evidence of the right to work check must be retained.

We provide training for staff on how to carry out compliant right to work checks. Please contact us to discuss this further.

What evidence do I need to retain of a Right to Work Check?

You must retain a record of the documents that have been checked. This can be a hard copy e.g. colour photocopy or a scanned and unalterable copy e.g. jpeg, pdf file.

You must also record the date that the check was undertaken. The simplest way to do this is to write on the copy document “the date on which this right to work check was made was [date]” and sign your name and role.

Please note that there are temporary changes in place for the way that you can check documents during the coronavirus pandemic. You can find more information on these changes on our Covid-19 hub.

How long do I have to retain evidence of a Right to Work Check?

Evidence of having carried out the right to work check must be kept securely for the duration of the individual’s employment and for a further two years after their employment ends.

Do I need to repeat the Right to Work Check?

Where the employee provides a right to work document from List A, they have an ongoing entitlement to work in the UK and no repeat checks need to be undertaken.

Where the employee provides a right to work document from List B, their right to work in the UK is limited in time and has an expiry date. This means that repeat checks must be undertaken before the expiry date shown on their right to work documentation.

The dates on which an employee’s right to work expires should be diarised as a reminder to undertake a repeat check.

What additional evidence do I need to retain for students?

International students have a restriction on how many hours per week they can work. Commonly this is 20 hours per week during term time and full time during vacations.

To obtain the statutory excuse in respect of a student, additional evidence of the student’s academic term and vacation dates must be obtained and retained.

This additional evidence can be requested from the student directly, but the evidence must originate from the education institution which is sponsoring the student.

The appropriate evidence can take the form of:

  • a printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study. The website should be viewed to check that the link is genuine; or
  • a copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course; or
  • a letter addressed to the employer from the education institution confirming the term time dates for the student’s course.

Non-compliance

Who is an illegal worker?

An illegal worker is an individual whose right to work has expired or alternatively, an individual who never had the right to work within the UK. This definition includes individuals who have entered the country illegally, or those who were granted leave to enter the UK, but have either overstayed past their visa expiry date or those who were granted leave subject to specific conditions which they are in breach of.

An individual does not need to have employee status in order to be regarded as an illegal worker. The offence of employing an illegal worker applies to any individual employed under a contract of employment, a contract of service or those undertaking an apprenticeship.

What do I do if someone cannot prove their Right to Work?

Anyone who cannot evidence their right to work should not be employed. If you are concerned that a new recruit or a current employee cannot evidence their right to work, get in touch to discuss the process for withdrawing the job offer or dismissing the employee.

What is the ‘statutory excuse’?

The statutory excuse is an ‘excuse’ given to employers who are found to be employing an illegal worker but have properly carried out the right to work check. This allows the employer to avoid a civil penalty.

What are the risks of non-compliance?

Immigration Enforcement Officers can turn up announced or unannounced at any employer’s premises to check whether they are employing any illegal workers and look at the right to work checks they carry out.

Employing an individual who does not have the right to work in the UK can result in, amongst other things:

  • a civil penalty
  • imprisonment for up to 5 years and an unlimited fine for anyone who knew or had reasonable cause to believe that the employee did not have the right to work
  • the employer being “named and shamed”, which is likely to cause serious reputational damage and negatively impact any future immigration applications
  • disqualification of directorships
  • if you hold a sponsor licence it may be suspended, downgraded or revoked
  • the employer receiving a Compliance Order or an Illegal Working Closure Notice.

To avoid these risks, we can provide training to your staff on how to carry out compliant right to work checks. Please contact us to discuss this further.

How much is the illegal working civil penalty?

Any employer who is found to be employing an illegal worker can receive a fine of up to £20,000 per illegal worker employed.

In certain circumstances, this can be reduced and will be reduced to zero if the employer has obtained the statutory excuse.

Can I challenge or appeal a civil penalty?

You can challenge a civil penalty notice on the basis that:

  • you are not liable to pay the penalty e.g. you are not the employer of the illegal worker
  • you have the statutory excuse, and/or
  • the level of penalty is too high e.g. you have mitigating evidence which means that the amount of the fine should be reduced.

If your challenge is unsuccessful, you can then go on to raise an appeal through the courts.

Our team has helped to successfully challenge numerous civil penalty notices, please get in touch to find out how we can help you.

Training

Right to Work training

Our immigration solicitors provide Right to Work training for HR and Recruitment teams and those who are responsible for carrying out right to work checks on employees. Using practical examples and case studies, the course is designed to up-skill your staff and ensure compliant right to work checks are completed. This training can be delivered at your premises and covers:

  • the history of illegal working legislation
  • the groups of individuals who are subject to right to work checks
  • the statutory excuse – what it is and how to obtain it
  • how to carry out a compliant right to work check
  • types of right to work documentation commonly encountered
  • right to work checks for EU nationals in light of Brexit, and
  • responding to Home Office enquiries and civil penalties.

Training courses cost £950 plus VAT each and can be delivered in-house to your staff. To discuss your immigration training requirements or the above courses, please contact us.

Case study

Case Study

Who was the organisation?

We were instructed by a Premier League Football Club after it was issued with a civil penalty by the Home Office having been found to be employing an illegal worker.

How did we help?

We worked with the organisation to gather all of the facts regarding the recruitment and employment of the individual in question.  We reviewed all of the right to work check documents held for the individual and the organisation’s practices and procedures.

It was apparent that the Home Office was not satisfied that the check had been carried out before the individual’s employment begun as it appeared to have been done on their first day of work.

We prepared a detailed witness statement for the member of staff who had carried out the right to work check explaining the sequence of events that took place in relation to this individual and sought to clearly explain the timings of the check in order to satisfy the Home Office that whilst the check had taken place on the first day of work, it was before the individual’s contracted start time.

We also delivered a training session for all managers involved in carrying out right to work checks, along with the HR and recruitment teams to refresh their knowledge in the area.  The organisation’s right to work policy, flowchart and guidance for managers was also updated by us to ensure they were best placed to avoid any civil penalties in the future.

We then prepared a robust application and supporting documents for the Home Office objecting to the civil penalty on the grounds that an adequate right to work check had been carried out giving the organisation the ‘statutory excuse’ and avoiding liability.

The result:

Following receipt of our additional information the Home Office was satisfied that right to work check had taken place before the employment began which meant that the civil penalty notice was withdrawn and the organisation was not required to pay the hefty fine.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

As a hub, we have included references to articles and explainers from third parties. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

Our immigration team

Flora Mewies profile image

Flora Mewies

Associate | Employment

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Leeds and Manchester

Roisin Patton profile image

Roisin Patton

Partner | Employment

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Newcastle

Gillian Burns profile image

Gillian Burns

Associate | Employment

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Newcastle

Natalie Payne profile image

Natalie Payne

Solicitor | Employment

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Leeds and Manchester

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