9. Eligibility to Work in the UK

Introduction

Every Company has an obligation under the Immigration Act to ensure that checks are implemented to ascertain an individual's right to work in the United Kingdom prior to commencement of employment. These checks must be applied to all prospective employees, regardless of apparent race, origin or citizenship.

The Law

The law makes it a criminal offence for an employer to knowingly employ someone, aged 16 or over, who has no right to work in the UK, or no right to do the work the Company is offering. However, the law gives you a statutory defence against conviction for employing illegal workers if you have checked, copied and retained on file certain original documents belonging to the individual. 

The law also obliges you to ensure that your recruitment practices do not discriminate against individuals on racial grounds.

The Company may be liable to payment of an uncapped financial penalty if you are found to be employing illegal migrant workers, and you could be subject to up to 5 years imprisonment.

Procedure

The Company must conduct a right to work check before employing a person to ensure they are legally allowed to do the work in question. If an individual’s right to work is time limited, you must conduct a follow-up check shortly before it is due to come to an end.

When you are checking the validity of the documents, you should ensure that you do this in the presence of the holder. This can be a physical presence 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. You may not rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document.

There are two types of right to work checks; a manual document-based check and an online check.

Conducting a Manual Document-Based Right to Work Check

There are three steps to conducting a manual document-based right to work check. You need to complete all three steps before employment commences to ensure you have conducted a check in the prescribed manner, in order to establish a statutory excuse.

Step 1 – Obtain.

You must obtain original documents from either List A or List B of acceptable documents.

There is no need for the individual to produce documents from both List A and List B.

Step 2 - Check

You are required to satisfy yourself that the prospective employee is the rightful holder of the documents presented and must check that:

  • photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
  • expiry dates for permission to be in the UK have not passed;
  • any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also

obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);

  • the documents are genuine, have not been tampered with and belong to the holder; and
  • the reasons for any difference in names across documents can be explained by providing evidence (e.g. original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.

Step 3 – Copy

Finally, you must make a clear photocopy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy. You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check. 

You must copy and retain copies of:-

  • Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
  • All other documents: the document in full, including both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format). The employer must keep a record of every document that has been copied, in order to comply with legislation.

All copies of documents taken should be kept securely for the duration of the employees’ employment and for two years afterwards. The copy must then be securely destroyed.

The Home Office recommend using their:-

  • employers’ ‘Right to Work Checklist’ to ensure you have correctly carried out all the steps you need to; or
  • online interactive tool ‘Check if someone can work in the UK’, which will take employers through the process by asking a series of questions. Both will help to confirm that the employer has undertaken each step correctly to establish your statutory excuse.

Both will help you to confirm that you have undertaken each step correctly to establish your

statutory excuse.

Acceptable Documents

 The documents you may accept from a person to demonstrate their right to work are set out in two lists – List A and List B below.

As of the 1st July 2021 the list of acceptable documents are: 

List A

Acceptable documents to establish a continuous statutory excuse:

  1. A passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK. 
  2. A passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland.
  3. A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom indefinitely.
  4. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.
  6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
  7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  8. A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

LIST B

Acceptable documents to establish a statutory excuse for a limited period of time
Group 1 - Documents where a time-limited statutory excuse lasts until the expiry date of leave.

  1. current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. 
  2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 
  3. A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom for a time limited period and to do the type of work in question.
  4. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  5. A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008, on or before 30 June 2021.
  6. A frontier worker permit issued under regulation 8 of the Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020.
  7. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

Group 2 - Documents where a time-limited statutory excuse lasts for 6 months.

  1. A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  2. A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  3. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
  4. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

 Conducting an Online Right to Work Check

An online right to work check will provide you with a statutory excuse against a civil penalty in the event of illegal working involving the subject of the check. You can do an online check by using the online service, entitled View a job applicant's right to work details.

It will not be possible to conduct an online right to work check in all circumstances, as not all individuals will have an immigration status that can be checked online. The online right to work checking service sets out what information you will need. In circumstances in which an online check is not possible, you should conduct the manual check. Currently, the online service supports checks in respect of those who hold:

  • a biometric residence permit;
  • a biometric residence card;
  • status issued under the EU Settlement Scheme;
  • status issued under the points-based immigration system;
  • British National Overseas (BNO) visa; or
  • Frontier workers permit.

The service works on the basis of the individual first viewing their own Home Office right to work record. They may then share this information with you if they wish, by providing you with a ‘share code’, which, when entered along with the individual’s date of birth, enables you to access the information. The share code will be valid for 30 days from the point it has been issued and can be used as many times as needed within that time.

 It is not sufficient to simply view the details provided to the individual on the migrant part of the service and doing so will not provide you with a statutory excuse.

In the presence of the individual (in person or via live video link), you must check that the photograph on the online right to work check is of the individual presenting themselves for email providing the share code work (i.e. the information provided by the check relates to the individual and they are not an imposter).

You must only employ the person, or continue to employ an existing employee, if you are conducting a follow-up check, 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 and do the work in question, you will not have established a statutory excuse from this check if you proceed to employ them. If you know or have reasonable cause to believe that they do not have the right to work, and employ them anyway, you risk being found guilty of a criminal offence.

If you employ someone on the basis of the online check, but it is reasonably apparent from the photograph that the individual working is not the individual to whom the information provided in the check relates, you may face a civil penalty in the event of illegal working.

 You must retain evidence of the online right to work check. For online checks, this should be 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. You will have the option of printing the profile or saving it as a PDF or HTML file.

You should store this securely, (electronically or in hardcopy) for the duration of employment and for two years afterwards. The file must then be securely destroyed.

When to conduct follow up checks?

You need to recheck the right to work of those individuals who have time-limited permission to work in the UK. This should occur when their previous permission comes to an end. The follow-up check is designed to prevent people from overstaying their immigration leave where this is time limited. The Employers Checking Service can confirm the right to work of an individual who has an outstanding application or appeal to the immigration system.

A person’s application for further immigration permission to stay in the UK must be made before their existing permission expires for it to be deemed ‘in-time’. If they do this, any existing right to work will continue until that in-time application has been determined. In such circumstances, a Positive Verification Notice from the Employer Checking Service would demonstrate your statutory excuse for six months from the date of the Notice. If you receive a Negative Verification Notice in response to your verification request, you will no longer have a statutory excuse and you will be liable for a civil penalty if the person is not permitted to work in the UK. You may also be convicted of the offence of employing an illegal worker.

This page was updated on 28th June 2021 following changes to the acceptable documents.