All employers in the UK must conduct a right to work check prior to an employee commencing employment to prevent illegal working. If an employer is found to be employing workers who do not have the right to work in the UK, employers can face a civil penalty of £45,000 per illegal worker for a first breach; and £60,000 per illegal worker for repeat breaches. The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), section 24B of the Immigration Act 1971, and Schedule 6 of the Immigration Act 2016.

However, if all the prescribed right to work checks are followed properly in accordance with the Code of Practice on Preventing Illegal Working dated 13 February 2024, employers are likely to have a ‘statutory excuse’ against liability for a civil penalty.

How can an employer verify an employee’s ‘right to work?’

At present, employers can conduct a right to work check in accordance with the following:

1.     Manual right to work check - where an employer inspects a prospective employee’s physical ID documents prior to the commencement of the employment e.g., by being provided with a valid passport.

2.     Right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) – this is for British and Irish Citizens.

3.     Online right to work check by using the Home Office online service (for non-British and non-Irish citizens): Use the Employer Checking Service.

1.     How to conduct a manual document-based right to work check

There are three steps to conducting a manual right to work check; and all employers must complete all three steps before employment commences to ensure that you have conducted a check in the prescribed manner; and also, in order to establish a statutory excuse.

Step 1: Obtain original documents from the prospective employee e.g. passport, BRP. etc.

Step 2: Check

Check that the documents are genuine; that the person presenting them is the prospective employee; is the rightful holder; and the employee is allowed to do the type of work in question.

It is also important to check that the details are consistent across all provided documents.

Step 3: Copy and keeping records

A clear copy of each document must be securely recorded and retained in a format which cannot manually be altered – The copy can be retained electronically or in hardcopy, and a date of the check must also be recorded.

All copies should be kept securely for the duration of the employment and for two years afterwards.

2.     Using an Identity Service Provider for British and Irish citizens

For British and Irish citizens who hold valid passports, employers can use Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks.

If employers use the services of an IDSP for digital identity verification, this will provide a continuous statutory excuse.

Similar to record keeping for manual right to work checks, employers must also retain a clear copy of the IDVT identity check for the duration of the employment; and for two years after the employment has come to an end.

In the event that IDVT check was conducted incorrectly, and a worker is found to be working illegally, the employer will not have a statutory excuse; and therefore, the employer could remain liable for any civil penalties.

3.     Online right to work check

A Home Office online right to work check will provide employers with a statutory excuse against a civil penalty in the event of illegal working.

EVisas

From 1 January 2025, e-Visas will replace all Biometric Residence Permits (BRP), Biometric Residence Cards (BRC) and Frontier Worker Permits (FWP). Therefore, it’s crucial that all BRP/BRC/FWP holders create eVisas to prove their right to work in the UK.

A follow up check is not needed until the employee’s permission is due to expire. However, if 31 December 2024 was taken as the expiry date, a follow-up check will be required.

In order to conduct the online right to work check via https://www.gov.uk/view-right-to-work, employers must have the prospective employee’s date of birth and a valid ‘share code’. The prospective employee will be required to generate the share code by accessing the online system.

There are three steps to conducting an online right to work check; and employers must complete all three steps before employment commences as explained below to ensure that the checks have been conducted in the prescribed manner; and also to establish a statutory excuse.

Step 1: Use the Home Office online service

To check the worker’s right to work details, you will need to:

• access the service ‘View a job applicant’s right to work details’ via GOV.UK
• enter the ‘share code’ provided to you by the worker, and
• enter their date of birth

Step 2: Check

Employers must check that the photograph on the online right to work check is of the individual presenting themselves for work. You must only employ the person, or continue to employ an existing employee if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question.

If the online right to work check does not confirm that the individual has the right to work in the UK, a statutory excuse from this check cannot be established if an employer proceeds to employ the worker.

Step 3: Retain evidence of the online check

Employers must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the worker’s photo, right to work, and the date on which the check was conducted.

Employers should store this securely, e.g. electronically or in hardcopy; and it must be kept for the duration of employment and for two years afterwards.

Should illegal working be identified, and in order to establish a statutory excuse; employers will need to be able to evidence that the prescribed online right to work check was conducted and by retaining evidence of the check as stated above.

The Home Office Employer Checking Service

In certain circumstances, employers will need to contact the Home Office’ Employer Checking Service (ECS) to verify an individual’s right to work and establish a statutory excuse, e.g., when:

·       a person has an outstanding application (which was made before their previous permission expired) or has an appeal or administrative review pending and, therefore, cannot provide evidence of their right to work.

In the above circumstances, employers will establish a statutory excuse only if they are issued with a Positive Verification Notice (PVN) from the Home Office confirming that the named person is allowed to carry out the type of work in question.

The statutory excuse will continue from the expiry date of an existing employee’s leave for a further period of up to 28 days to enable the employer to obtain a PVN from the ECS or to carry out a Home Office online check.

This ‘28-day period’ does not apply to checks carried out before the start of the employment. In these circumstances, employers should delay the start of employment until a PVN from the ECS has been received or have carried out a right to work check in the prescribed manner.

The ECS aims to provide a response within five working days of receiving a valid request.

It is the employer’s responsibility to inform the person they intend to employ, or continue employing, that they are carrying out this check on them, to complete the verification request correctly and to make the request at least 14 days after the date of the immigration application, appeal or administrative review was delivered or posted.

A PNV from the ECS will provide you with a statutory excuse against liability for a civil penalty enabling the employer to hire or extend the person’s contract for six months from the date specified in the Positive Verification Notice.

Please note that the ECS is for the use of employers only.

Right to Work checks EEA citizens granted status under the EU Settlement Scheme (EUSS)

The majority of EEA citizens now prove their right to work using the Home Office online service; however, the Home Office no longer require employers to carry out repeat checks on holders of pre- settled status. Accordingly, a right to work check on holders of pre-settled and settled status granted under the EUSS is only required prior to the commencement of employment.

Where initial checks were correctly undertaken prior to the commencement of employment on a holder of pre-settled status, and providing employers are not knowingly employing someone without the right to work, the Home Office shall not take civil penalty action against the employer.

Applications submitted to the EU Settlement Scheme (EUSS)

EEA citizens, and family members, who have made a valid application to the EUSS have temporary protection of rights under the Withdrawal Agreement, the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement, which gives them a right to work until their application is finally determined. This includes pending the outcome of any administrative review or appeal against a decision to refuse status. Employers should not treat those with an outstanding, valid application less favourably.

Certificate of Application (CoA)

A CoA is evidence that an individual has made a valid application to the EUSS and should be used to evidence their right to work until their application (and any appeal or administrative review) is finally determined.

Where an individual has been issued with a CoA, employers must first check whether this is a ‘digital’ or ‘non-digital’ CoA.

Digital Certificate of Application

Most individuals with an outstanding valid application made to the EUSS have been issued with a digital CoA. In this instance, employers should check with the individual and ask them to provide a share code. This means employers can check the worker’s right to work immediately via the online service and do not need to contact the ECS. The online service will provide confirmation of their right to work and advise when a follow-up check is required.

Non-digital Certificate of Application

A ‘non-digital’ CoA is a PDF document attached to an email or a letter, sent to the individual, advising them how prospective employers can verify their right to work. Where a prospective employee provides a ‘non-digital’ CoA as evidence of an application made to the EUSS, employers should check with the individual and ask them to provide a share code to verify their right to work in accordance with the ‘Digital Certificate of Application’ process as explained above.

If the prospective employee has not been issued a digital version and is unable to provide a share code, you should contact the ECS. You should also make a copy of the ‘non-digital’ CoA and retain this copy, together with a PVN from the ECS. In doing so, you will have a statutory excuse for six months from the date stated on the PVN.

When to conduct follow-up checks?

Employers need to recheck the right to work of those individuals who have time-limited permission to work in the UK if they are going to continue working for the employer after their current permission expires. If the initial check confirmed the employee has indefinite leave to enter or remain in the UK, or status under the EU Settlement Scheme, then there is no requirement to carry out a follow-up check.

Where an employee has time-limited permission to work in the UK, a follow-up check should take place on, or before, the date their permission comes to an end. The follow-up check supports employers by ensuring they are not employing those who no longer have the right to work.

Employers will have a statutory excuse against liability for a civil penalty provided that the initial check was conducted before the commencement of the employment, and the required follow-up checks were made.

Employers should provide an employee with reasonable opportunity to prove that they continue to have a right to work. As explained above, employers are able to contact the ECS to confirm the right to work of an employee who is unable to do so online using a share code or manually using original, hard-copy documents which are acceptable evidence to prove their right to work.

For expert assistance with right to work checks and to ensure your compliance with UK employment laws, Call Latitude Law today on 0300 131 6767, or fill out our online contact form and we will get straight back to you.our legal professionals will discuss your specific needs. .