How to conduct a right to work check

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All employers have a duty to check that a potential employee is entitled to work in the UK. Here we provide a guide on the points that must be considered.

Three steps to conducting a right to work check

Step 1. Obtain original versions of one or more acceptable documents.

Manually gather the documents required as listed in either List A or List B depending on whether the employee has a permanent or temporarily right to work in the UK. If you conduct the right to work checks correctly before employment begins, and the person has a permanent right to work, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any further checks.

Where a person who has a temporary right to work in the UK, if you conduct the right to work checks correctly, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse. This will generally be when the permission to be in the UK comes to an end.

If the person has a limited leave to remain in the UK, since April 2022 it has been mandatory to conduct right to work checks using the Home Office’s online service. The applicant generates a code from the Home Office online service and shares this with you. This code along with the applicant’s date of birth will give you access to the employer section of the right to work check. 

Alternatively, you can appoint an approved Independent Service Provider to complete the digital verification of the right to work check. However, you would still need to complete step 2 (below) and ensure the documents the service provider produces match the person you are employing. 

Step 2. Check the documents’ validity in the presence of the holder.

When you are checking the validity of the documents, you must ensure that you do this in the presence of the holder. This may be a physical presence in person or via a live video link. In both cases, you must be in the physical possession of the original documents or Home Office photograph. You cannot rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document.

Step 3. Make and retain a clear copy and record the date the check was made. 

You must keep a record of every document you have checked, including the employee’s profile page if using the online service. This may be a hardcopy or a scanned and unalterable copy, such as a jpeg or pdf document. You should keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you.

You must also make a record of the date on which you conducted your check. This may be by either making a dated declaration on the document copy or by holding a separate record, securely, which may be shown upon request to establish your statutory excuse. This date of check may be written on the document copy as follows: “the date on which this right to work check was made: [insert date]”, or you may make a separate manual or digital record indicating the date you conducted the check and copied the documents.

Additional evidence required from students

When conducting checks, if you are presented with documents indicating that the holder is a student with a limited right to work in the UK during term time, you are required to obtain and retain evidence of their academic term and vacation dates.

Specific points to note

  • You should conduct right to work checks on all potential employees. Do not simply check the status of those who appear to be migrants. Treat all potential employees in the same way.
  • Working illegally is a criminal offence. Illegal workers face having their wages seized. They may also be prosecuted and can be imprisoned for up to six months.
  • If you are found to be employing someone illegally and you have not carried out the prescribed checks, you will face robust sanctions which could include:
    • a civil penalty of up to £60,000 per illegal worker from early 2024 (up from £20,000);
    • a criminal conviction carrying a prison sentence of up to five years and an unlimited fine; 
    • closure of the business and an application for a court compliance order; 
    • disqualification as director;
    • not being able to sponsor migrants; and 
    • seizure of earnings made as a result of illegal working.

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