Right to Work Checks Guidance

Under UK law, employers found to be employing individuals who do not have appropriate immigration permission to work can face tough sanctions. Employers can protect themselves by carrying out compliant right to work checks.

Under the prevention of illegal working legislation, an employer will be excused from paying a civil penalty if they can demonstrate that they have carried out a compliant right to work check in accordance with Home Office guidance and the codes of practice.

Right to work checks: What is required?

An employer must check the right to work for all employees before an employee begins their employment. Right to work checks are an essential element of the recruitment process and must be conducted by all employers, including those with or without a sponsor licence.

There are a number of ways in which a right to work check can be completed, which depend on the prospective employee’s immigration status. These include:

A manual right to work check.
A right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP).
A Home Office online right to work check.

Manual right to work check

A manual right to work check involves a number of stages.

Employers must obtain the original document from List A or B of the acceptable documents for a right to work check. Employers must have the original document in their possession when making a manual check. The employee can be present or can appear via video link for the check to take place.

The employer must make a clear copy of each document either electronically or in hardcopy. It must be dated to confirm the date of the manual check, and the copy must be retained for the duration of the employment and for a further two years.

Right to work check using IDVT via the services of an IDSP

Employers can use IDVT via the services of an IDSP to conduct a digital right to work check for British and Irish citizens who hold a valid passport (or Irish passport card). This option establishes a continuous statutory excuse, and there is no need to conduct follow up checks.

A list of certified IDSPs can be found here.

Home Office online right to work check

Individuals who have an eVisa, Biometric Residence Card (BRC), Biometric Residence Permit (BRP), or a Frontier Worker Permit (FWP) are only able to prove their right to work using the Home Office online service.

The prospective or existing employee will need to provide a share code which the employer can use to conduct the online check which will confirm whether they are entitled to work.

The Employer Checking Service

In some cases, employers may need to contact the Employer Checking Service. This may be required in circumstances, for example, where the employee has an outstanding immigration application, administrative review, or appeal. In some cases, the employer may be directed to the Employer Checking Service after using the Home Office online service.

The employer will need to receive a Positive Verification Notice (PVN) confirming the employee is allowed to work. A PVN establishes a statutory excuse for six months from the date issued.

Follow up checks

Where an employee has time-limited permission to work in the UK, employers must be mindful to conduct follow up right to work checks before the employee’s permission comes to an end. If the employer has received a PVN from a check made via the Employer Checking Service, the statutory excuse lasts for just six months.

Who to conduct checks on

Employers must conduct right to work checks on all prospective employees to establish their statutory excuse against a civil penalty.

Employers must also be mindful not to discriminate when carrying out right to work checks and must carry out consistent checks on all prospective employees.

Right to work checks: How our Immigration Solicitors can help

We are able to provide legal advice and guidance in relation to the right to work legislation to ensure that employers are taking the steps needed to establish and maintain a statutory excuse. We also provide advice on specific complex scenarios.

If your organisation requires legal assistance, or if you would just like to discuss your situation with one of our experts on a no-obligation basis, please contact us.

More right to work check FAQs

Are right to work checks a legal requirement?

Yes, employers must conduct right to work checks in line with current guidance and legislation. Failure to do so would mean an employer has not established a statutory excuse against civil penalties.

Organisations that hold a sponsor licence and fail to conduct the necessary checks are at risk of having their sponsor licence revoked.

How long does it take to conduct a right to work check?

This depends on the method of conducting the right to work check. For example, a manual right to work check will take as long as it takes the prospective employee to provide their document, and for the employer to conduct their checks.

If an employer was required to use the Employer Checking Service to obtain a PVN, it can take up to five working days to receive the verification notice.

Why are follow up checks necessary?

Follow up checks are necessary in instances where the employee has time-limited permission to stay in the UK, to ensure they have continued right to work. Employers must have systems in place to ensure follow up checks are made in line with the guidance.

Should an employer fail to conduct follow up checks where necessary, they may lose their statutory excuse and be at risk of receiving a civil penalty.