RIGHT TO WORK CHECKS
PREVENTING ILLEGAL WORKING
The Importance Of Right To Work Checks
All employers in the UK have a duty to prevent illegal working by carrying out right to work checks on prospective employees
Where an employer is found to have employed someone who is prohibited from working (by reason of their immigration status), they will have a statutory excuse against liability and will not receive a civil penalty provided they have correctly conducted right to work checks.
Where an employer has failed to carry out the required checks (or has failed to carry them out correctly), however, they can face a range of sanctions including a civil penalty of up to £20,000 per illegal worker.
It is therefore imperative for employers to conduct the prescribed right to work checks on all new employees before employment commences, even if they claim to be UK nationals, in order to benefit from a statutory excuse. Where an individual’s right to work is time-limited follow-up checks should be conducted shortly before it is due to come to an end.
When to Check
You must ensure that you have sufficient evidence to support your right of defence if the Immigration Office finds that you have employed an illegal worker. Therefore all checks must be carried out prior to an individual starting employment. It is up to the individual to prove that they are eligible to work in the UK – if you are not satisfied with the documents presented do not employ the individual until such time that they can provide satisfactory documents.
You can ask applicants to provide proof of entitlement to work in the UK at any stage before they start work.
So you can do it at the interview stage, but if you are filling a number of positions then that a lot of unnecessary checking. If it is more convenient you are perfectly entitled to ask only the person chosen to fill the vacancy to provide their documentation.
The Manual Checking Service
The manual checking process involves requesting original physical documents from new employees, which they then needed to check and retain copies of in order to establish a statutory excuse.
There are two lists of documents which can be used. I have added a link at the end of this article for you to download the Checklist with the two lists of documents.
It is not acceptable simply take a copy of the documents presented. You must also check that the potential employee is the rightful holder of the documents presented. This can be achieved by checking that:-
- The photograph is actually of the individual
- The date of birth is consistent with the applicants appearance
- The information contained within the document corresponds with that contained within the application
- The expiry date has not passed
- Any UK Government stamps or endorsements permit the individual to perform the type of work on offer
- If the two documents in List 2 bear different name, a further document is produced that explains the discrepancy
The relevant parts of the documents should be photocopied or scanned and retained on the employee’s personal file whilst they are employed by you and for at least six months after they leave the company.
From 28 January 2019 short-form birth certificates and adoption certificates from UK nationals are now acceptable when presented in conjunction with a valid National Insurance number, for the purpose of manual right to work checks.
The New Online Checking Service
New legislation came into effect in January 2019 enabling employers to rely solely on the Home Office’s online checking service to demonstrate that they’ve conducted necessary right to work checks.
This change undoubtedly makes it simpler for employers to conduct right to work checks and to establish a statutory defence against liability.
The Home Office Right to Work Checking Service available on GOV.UK, gives employers access to up-to-date, real-time information about migrants’ right to work, making it easier for individuals to prove their rights in the UK.
The Right to Work Checking Service is secure and free to use. It was launched in April 2018, however until now, employers have still needed to request paper documents alongside using the service. The changes will mean that employers can use the online service to demonstrate they conducted the necessary right to work checks on migrants and avoid a penalty if they are found to be employing illegal workers.
The online Right to Work Checking Service makes the checks simpler for employers and provides greater security as they no longer need to rely on physical documents when checking migrants’ status, further reducing the risk of forged documents being presented.
Above all, our new checking service makes it easier than ever for migrants to view and prove their right to work in the UK.
The service is voluntary for employers and individuals. Migrants may demonstrate their right to work using either the existing document checking service or the online checking service.
Individuals will be able to authorise their current or prospective employer to see information about their immigration status to conduct the check and will be able to see exactly what information will be shared.
The online Right to Work Checking Service can be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme. EEA nationals who have not been granted settled status under the EEA scheme will still need to demonstrate their right to work through the appropriate documents, such as their national passport, as now.
The changes being made today will also make it simpler for UK nationals without British passports to demonstrate their citizenship by enabling them to use short birth or adoption certificates, which they can get for free, instead of the long versions.
Using the Home Office online service
- It is not possible to conduct an online right to work check in all circumstances – currently this service only supports checks in respect of those who hold: (i) a biometric residence permit or biometric residence card or (ii) status issued under the EU Settlement Scheme. In circumstances where an online check is not possible a manual check should be conducted.
- Employers must conduct their own check on the gov.uk website to establish the statutory excuse. This check will need to confirm that the prospective employee is permitted to work in the UK and undertake the work in question. Employers cannot rely on the new employee providing information from the migrant part of the checking service, nor can they use any other online portal relating to immigration status to do so. Where they do so the statutory excuse will not apply.
- Employers cannot mandate online checks. The checking service is voluntary, and employers will need the prospective employee’s consent to conduct a check on them. The candidate will need to complete an online process themselves in order to obtain a ‘share code’, which is valid for 30 days, that they can pass to the employer along with their date of birth so that the employer can undertake the check.
- When carrying out the online check employers need to satisfy themselves that any photograph on the check is a true likeness of the individual presenting themselves for work.
- Employers must retain a clear copy of the response provided by the online check. This will need to be securely stored either electronically or in hard copy format for the duration of the employee’s employment and for at least two years after the employment ends.
Avoid Discrimination Claims
If you choose to request documents at an earlier stage of the recruitment process, such as at the first or second interview stage, make sure that you ask all applicants who reach that stage so you do not risk being accused of race discrimination. If you asked a black job applicant to produce appropriate documents but not a white applicant you would be discriminating against the black applicant on the grounds of his race. Remember, there is no upper limit to compensation awards for racial discrimination.
If an applicant’s documents are incomplete, it is perfectly acceptable to continue with the selection process as planned. Simply ensure that if you offer that applicant the job you have checked the correct documents before they start work. I would suggest giving them a deadline to provide the documents and make it clear if they do not comply you will offer the position to another applicant.
The introduction of the wider service is undoubtedly a step in the right direction in terms of simplifying and modernising the immigration system.
It will also provide certainty for employers as to how they undertake right to work checks in the future for employees and prospective employees who register under the EU Settlement Scheme. Current arrangements, under which EU citizens can demonstrate their right to work in the UK by producing their national passport or identity card will continue after the UK leaves the European Union and for the entire duration of any implementation period. However, with the introduction of the new online service EU nationals may alternatively choose to rely on online status issued following a successful application to the EU Settlement Scheme for leave to remain, by using the online service to share their right to work with their employer.
Home Office Right to Work Checklist
The Code of Practice on Preventing Illegal Working requires employers to verify entitlement to work in the UK by asking for appropriate documentary proof from new employees.
The checklist was updated to reflect temporary changes introduced in light of the Coronavirus pandemic.