Recent months have seen tweaks being made to the rules and requirements of the UK’s post-Brexit immigration system and more changes are on the horizon.
During this webinar, on 26th May, our expert immigration solicitors identified key changes employers should be aware of and provided practical tips and guidance for HR and Management on:
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.
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.
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.
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.
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.
Yes, those engaged under a contract of apprenticeship should have their right to work checked.
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.
No. The Home Office guidance is clear that you cannot require employees to provide evidence that they have applied or obtained status under the EUSS as to do so would be discriminatory.
As an alternative, employers may wish to say to employees that if they have applied under the EUSS and received settled or pre-settled status, it would be helpful if they provided evidence of this. It is sensible to explain that there will be no repercussions from a failure to do so as you cannot currently require them to share this with you.
It is expected that from 1 July 2021 you will be able to require evidence of this, however the Home Office has not yet published the new guidance so this cannot be confirmed.
For the purpose of right to work checks EU nationals fall into three categories:
The information that you need and the check that you do will be slightly different for each of these three categories (see below).
If a compliant right to work check is done before the employment begins, the employer receives the benefit of the statutory excuse, protecting the business from a civil penalty if the employee turns out not to have the right to work.
So long as a compliant right to work check has been carried out, there is no requirement to undertake further right to work checks for this category of EU national.
EU nationals who began residing in the UK by 31 December 2021 are eligible for settled or pre-settled status under the EU Settlement Scheme (EUSS). EU nationals who began residing in the UK on or after 1 January 2021 cannot apply under the EUSS and require a visa to work in the UK.
The period 1 January to 30 June 2021 is a post-Brexit grace period and so regardless of when the EU national began residing in the UK, employers are permitted to carry out the standard right to work check. This means that the individual can provide a document from List A or List B, e.g. their EU passport, evidence of pre-settled or settled status.
The Home Office guidance specifically states that employers aren’t required to find out when an EU national started residing in the UK.
A compliant right to work check gives the employer the statutory excuse, providing protection from a civil penalty if the employee subsequently does not have the right to work.
However if the employer knows or has reasonable cause to believe that the EU national arrived in the UK on or after 1 January 2021, it will be aware that the employee requires a visa and, amongst other things, the statutory excuse becomes null and void.
Cautious employers may well want to ask for evidence of when EU national employees began residing in the UK. It can then determine whether the employee requires a visa and if so, request evidence of this in order to ensure the employee has the right to work.
The Home Office has confirmed that new right to work guidance will be published ahead of July in relation to this category of EU nationals.
It is highly likely that an employer will require evidence of pre-settled or settled status, or alternatively a visa permitting the EU national to carry out the role that they are being recruited to do.
The Home Office does not require employers to find out whether or not employees who began working for them by 30 June 2021 have applied under the EUSS.
So long as a compliant right to work check has been done, and provided there was no time limit on the right to work, you will be able to keep employing the EU national after 1 July 2021 without doing another check or seeing evidence of their status under the EUSS.
This is because you will receive the statutory excuse as a result of your compliant right to work check. As a result, if an employee hasn’t applied under the EUSS and has become an overstayer – such that they don’t have the right to work – you as the employer can rely on the statutory excuse as a defence to employing them illegally.
The exception to this is that if you know or have reasonable cause to believe that they don’t have the right to work after 30th June 2021 e.g. because they haven’t applied or their application was rejected – this will render your statutory excuse null and void and expose the business to the civil penalty of £20,000 per illegal worker as well as a criminal offence.
Unless you employees tell you, you will not know whether or not they have applied and you are not currently permitted to ask. For the reasons explained above, you should not need to know whether your existing employees have applied by 30th June 2021, or what the outcome of any application is and the Home Office does not expect you to find out.
As with the above, employers are unlikely to know whether an employee has applied and/or the outcome of their application unless the employee tells you.
The guidance says that there is no obligation to carry out retrospective right to work checks on EU nationals employed by you on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working, if a compliant right to work check was carried out.
However, if the business is found to be knowingly employing an illegal worker, a criminal offence is being committed.
The Home Office does not require employers to find out if employees whose employment commenced on or before 30 June 2021 have applied under the EUSS. Employers are also not required to find out when EU employees arrived in the UK.
So long as the business is satisfied that compliant right to work checks have been done and could be evidenced if needed, this check can be relied upon (as discussed above) and no further check is required.
The statutory excuse can be relied on even if the business is employing an EU national who first relocated to the UK on or after 1 January 2021 and who requires a visa to work but does not have one.
If there is any concern that compliant right to work checks have not been carried out, it is sensible to carry out a new check now, in order to identify any issues regarding an employee’s right to work status.
Carrying out new right to work checks for all employees or, for all employees who you do not have a compliant right to work check for is the safest way to avoid allegations of discrimination.
It is crucial to note that the statutory excuse is null and void if the employer has knowledge or has reasonable cause to believe that the EU national doesn’t have the right to work e.g. they first relocated to the UK after 1 January 2021 but do not have a visa. In this situation, the employer would be exposed to a civil penalty and/or a criminal offence.
For this reason, employers are choosing to ask for evidence at the recruitment stage to see when prospective employees first relocated to the UK so that they know whether or not they need a visa, rather than potentially finding out later down the line.
We are waiting for the updated Home Office guidance for right to work checks but it is expected that UK residence cards issued to EU nationals will not be valid for right to work purposes from 1 July 2021.
The current guidance states that such cards can be used by individuals who have status under the EUSS and for one entry to the UK by those who intend to apply under the scheme.
The current guidance on EEA family permits is that these will cease to be valid after 30 June 2021 and so current holders should apply under the EUSS.
A job offer can be retracted if they cannot evidence that they have the right to work. If this happens between 1 January and 30 June 2021, the prospective employee does not have to evidence their settled or pre-settled status and so retracting a job offer on this basis could lead to a discrimination claim. It is therefore advisable to ask for evidence that they began residing in the UK on or before 31 December 2020 as this will allow you to determine whether they can apply under the Scheme and have the right to work, but just haven’t submitted their application yet.
If you have checked an employee’s right to work before their employment began, you don’t need to repeat this at this time.
If however you have never checked an employee’s right to work, it is recommended that you do this now.
If right to work checks aren’t carried out before employment begins and the employee is found not to have the right to work, the employer is at risk of being fined up to £20,000 per illegal worker. This risk remains even if the right to work check is carried out after the employee begins work however it is better to carry out a late check than none at all as this will identify any concerns and give you the opportunity to resolve this or take action before the Home Office does.
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.
|Documents in List A provide a continuous statutory excuse (i.e. no need to re-check right to work in the future)|
|1||A 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.|
|2||A 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.|
|3||A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a European Economic Area country or Switzerland.|
|4||A Permanent Residence Card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland.|
|5||A 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.|
|6||A 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.|
|7||A 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.|
|8||A 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.|
|9||A 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.|
|10||A 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.|
|1||A 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.|
|2||A 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.|
|3||A 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.|
|4||A 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.|
|1||A 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.|
|2||An 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.|
|3||A 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.|
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.
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.
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:
The online checking service can be used by non-EEA nationals who hold biometric residence permits/cards, EEA nationals who have been granted immigration status under the EU Settlement Scheme and individuals who hold a BNO visa or Frontier Worker Permit. 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:
Evidence of the right to work check must be retained.
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.
Right to work checks should still be carried out before employment begins and can be done either online or in person using hard copy documents.
The documentation that can be accepted from an EU/EEA national or their family member will depend on whether they have registered under the EU Settlement Scheme.
Individuals who have registered under the Scheme do not receive a formal document showing that they have settled or pre-settled status but instead their status is shown on their online immigration account.
From this account they can generate a code which they provide to their employer. This allows the employer to log on, view their status and download or print this as evidence of their right to work.
The right to work check guidance should be updated closer to the Scheme closing on 30 June 2021 but until then, individuals who haven’t registered under the Scheme will still be able to evidence their right to work by providing their European passport or national identity card.
A passport or ID card won’t tell the employer whether or not the individual arrived in the UK on or before 31 December 2020 and is eligible to apply under the Scheme and therefore has the right to work. It is therefore sensible to ask for evidence that the individual started living in the UK by 31 December 2020 as this will show that they are eligible to continue living and working here, even if they haven’t yet applied under the Scheme.
Employers may recruit non-EU nationals who are the family members of an EU national and if this is case, you would want to see their ID as well as evidence of their relationship with the EU national so that you know that they have the right to work and can register under the Scheme, but haven’t done so yet.
The Home Office has confirmed that there is no mandatory requirement for employers to undertake retrospective checks on European nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with right to work legislation and in line with the guidance.
Yes. The Home Office introduced temporary Covid-19 concessions to facilitate social distancing which means that you can use electronic copy documents to carry out the right to work check and can check the likeness against the job applicant via video call rather than in person.
Where the job applicant cannot provide these documents, employers can use the Employer Checking Service and if they have the right to work, then the employer will receive a Positive Verification Notice which will provide the employer with a statutory excuse for 6 months.
The Home Office has provided useful guidance on how to carry out a compliant Right to Work check using the temporary adjustments in place for Covid-19. In summary:
However, the Home Office has confirmed that the temporary right to work checks will end on 20 June 2021. From 21 June 2021, you will need to check the individual’s original documents, or check their right to work online, if they have given you their share code.
From 21 June 2021 onwards, you can still carry out a right to work check via live video link, however you must be in physical possession of the original documents. For example, an individual may choose to send their documents to you by post to enable you to conduct the check with them via live video link. You may not rely on the inspection of the document via live video link or by checking a faxed or scanned copy of the document.
The Home Office has confirmed that you do not have to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 20 June 2021 (inclusive).
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.
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.
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:
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.
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.
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.
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:
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.
You can challenge a civil penalty notice on the basis that:
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.
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:
Half day training courses cost £995 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.
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.
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.
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.
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