Right to work checks and civil penalties - Page 5

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.

If you conduct a proper right to work check in line with the guidance, you will establish a ‘statutory excuse’ against liability for a civil penalty in the event you are found to have employed someone who is disqualified from carrying out the work in question, by reason of their immigration status.

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 of up to £60,000 per illegal worker.

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.

For British and Irish citizens with a valid passport (or Irish passport card), you can engage an Identity Service Provider to carry out digital identity checks but you, as the employer, still remain liable for the civil penalty should the employee later be found to be working without the requisite permission and it is reasonably apparent the check has not been completed correctly.

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 and to avoid any disruption to your operations if such illegal workers are removed from your business.

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.

If an individual’s right to work is time limited, you should conduct a follow-up check shortly before it is due to come to an end.

Settled status is granted to those who have lived in the UK continuously for 5 years and if granted, allows you to continue living and working in the UK indefinitely.

Pre-settled status is granted to those who haven’t yet lived in the UK continuously for 5 years and so they are given the right to remain in the UK for a further 5 years, rather than permanently.  Individuals will then be able to convert this into settled status once they have reached 5 years in the UK in total.

Pre-settled status is granted for a limited period of time which allows the holder to reach 5 years in the UK and then to apply to convert this into settled status.  If the individual is unable to convert their pre-settled status into settled status, for example because they have spent more than 6 months in any 12 month period outside the UK they cannot renew their pre-settled status and so it will lapse on the expiry date.

In addition, pre-settled status is lost if they spend more than 2 consecutive years outside of the UK and settled status is lost by spending 5 consecutive years outside of the UK.

It can also be lost if they no longer meet the eligibility criteria, for example in relation to criminal offences.

Yes, as part of the right to work check.  Prospective employees will only be able to evidence their settled or pre-settled status through the online right to work check as they are not issued with physical documents proving their status.

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.

If the employer knows or has reasonable cause to believe that the EU national has not made a valid application for status under the EUSS before 30 June 2021 and either does not have reasonable grounds for missing the EUSS application deadline or has not secured right to work under an alternative immigration route, then if they continue to employ the individual they risk jeopardising their statutory excuse.

We recommend that specific advice be sought from our immigration experts in these circumstances.

No.

If you have checked an employee’s right to work before their employment began, you don’t need to repeat your check.

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 £60,000 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.

Yes, everyone’s right to work needs to be checked.  Irish citizens were not required to apply under the EU Settlement Scheme and can live and work in the UK using their Irish passport or passport card (in either case, whether current or expired), or their Irish birth or adoption certificate together with an official document giving their National Insurance number and name.

Irish citizens can also apply for a frontier worker permit so they can prove their right to work using the Home Office online right to work service. A frontier worker is an EEA citizen who is resident outside the UK but who is economically active (employed or self-employed) in the UK.

If an employee failed to apply by 30 June 2021 they will have lost their right to live and work in the UK which would mean that they are an illegal worker.

There are some grounds on which discretion can be exercised to allow late applications but this would require specific advice and guidance.

For right to work checks carried out on or after 1 October 2022, employers must do one of the following before the employee commences employment:

1. A manual right to work check;
2. A right to work check using IDVT via the services of an IDSP; or
3. A Home Office online right to work check.

You can also use the Employer Checking Service where an individual has an outstanding application, administrative review or appeal.

The Home Office Employer Checking Service is the enquiry and advice service that employers are required to contact in certain circumstances to check whether a person is allowed to work in the UK and if so, the nature of any restrictions on that person’s right to do so.

If you use the Employer Checking Service, you will only establish a statutory excuse if you are issued with a Positive Verification Notice confirming that the named person is allowed to carry out the type of work in question. A Positive Verification Notice will provide you with a statutory excuse for six months from the date specified in the notice. You must therefore undertake a further check before this expires, if the statutory excuse is to be retained.

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.

Step 1: Request original right to work documents from either List A or List B from the individual.

Step 2: Once received, check that the documents are valid in the presence of the individual . 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

If there is a difference in names across documents, you must ensure that the reason can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll etc) and you should also retain a copy of this evidence.

When you are checking the validity of the documents in the presence of the holder, you can do this in person or via a live video link. In both cases 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.

Step 3: Evidence of the right to work check must be retained either electronically or in hard copy.

• You must make a clear copy of every document you have checked in a format which cannot manually be altered.
• You must also retain a secure record of the date on which you made the check and simply writing a date on the copy document is not sufficient, you must also record that this is the date on which you conducted the check. You may face a civil penalty if you do not record the date on which the check was performed.
• All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years thereafter.

We provide training for staff on how to carry out compliant right to work checks. Please contact one of our expert Immigration team to discuss this further.

No.  With effect from 6 April 2022, right to work checks on BRP’s, BRC’s and Frontier Worker Permits have to be done using the online checking service.  If a right to work check is done manually, this will not give the employer the statutory excuse.

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 Irish 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.

An IDSP uses Identity Document Validation Technology (IDVT) to digitally verify a valid British or Irish passport (or Irish Passport card) on behalf of the employer as part of the right to work check.

The IDSP will obtain evidence of the prospective employee’s identity, check that it is valid and that it belongs to the person who is claiming it.

This service can only be used for British and Irish citizens and still requires the employer to satisfy themselves that the photo and biometric information on the passport matches the individual in question and to retain a record of the check.

Yes. The IDSP will check the individual’s identity using (usually) their passport.  The employer must then review the output report provided by the IDSP, check the appearance of the prospective employee is consistent and retain evidence that this check has been conducted.

No, the IDSP can only conduct a right to work check on British or Irish citizens who hold a valid passport or Irish passport card.

You must not treat those who do not hold a valid passport, or do not wish to prove their identity using an IDSP less favourably than those who are able or willing to use an IDSP. You must provide individuals with other ways to provide their right to work and should carry out a manual check in these circumstances.

A list of certified providers is available on GOV.UK – click here.

It is not mandatory for you to use a certified provider but IDSPs can carry out digital identity verification to a range of standards or levels of confidence and the Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence.

You can do an online check by using the online service, entitled ‘View a job applicant’s right to work details’.

The individual must share their online right to work record with you by providing a “share code” and their date of birth. This is then entered into the online Right to Work Checking Service.

You must carry out the check by accessing the ‘View a job applicant’s right to work details’ page on GOV.UK. It is not sufficient to view the details provided by the prospective or existing employee on the migrant part of the service.

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.

Yes, once you have carried out the online check you must ensure the results match the individual’s appearance and you can do this in person or over video call.

No, you only need to carry out the online check and retain a record of this. You do not need to check the physical BRP or passport.

It will not be possible to conduct a Home Office online right to work check in all circumstances as not all individuals will have an immigration status that can be checked online. If the online check is not possible, you should conduct the manual check.

Individuals with an eVisa, Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) are only able to evidence their right to work using the Home Office online service.

You must retain evidence of the ‘profile’ page confirming the individual’s right to work. This is the page that includes the individual’s photo and date on which the check was conducted.

Flora Mewies and Isabelle Cernis give their three top tips on how to carry out a right to work check.

Immigration expert Natalie Payne talks you through how to carry out a right to work check online in this short video.

Immigration expert Natalie Payne talks you through how to carry out a paper-based right to work check in this short video.

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

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

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.

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.

Any employer who is found to be employing an illegal worker can receive a fine of up to £60,000 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:

• 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.

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
• civil penalties and responding to Home Office enquiries

The above session is a guide and bespoke courses can be built around your requirements.  Prices for our training courses start at £1,500 plus VAT and can be delivered in-house to your staff or online. 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.

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.