Specialist legal advice for employers on compliant Right to Work checks, online and manual verification, eVisas, follow-up checks, the Employer Checking Service, statutory excuses and reducing the risk of illegal working civil penalties.
Every UK employer has a responsibility to prevent illegal working.
Before employing an individual, an employer should carry out the prescribed Right to Work check to establish that the person is permitted to work in the UK and is allowed to undertake the work being offered. A correctly completed check can provide the employer with a statutory excuse against liability for a civil penalty if it later emerges that the individual was working illegally.
Right to Work compliance has become increasingly digital. Depending on the individual’s circumstances, employers may need to use the Home Office online service, conduct an appropriate manual document check or use an Identity Service Provider for eligible British and Irish citizens.
The consequences of getting this wrong can be serious. Civil penalties can reach £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. More serious cases can potentially involve criminal liability, while businesses holding a Sponsor Licence may also face separate sponsor compliance action.
At Knights & Shah Solicitors, we advise employers on Right to Work compliance, helping businesses establish robust checking procedures, resolve difficult immigration status cases and respond where potential illegal working is identified.
A Right to Work check is the process through which an employer establishes whether an individual is legally permitted to undertake the proposed employment in the UK.
The check should normally take place before employment begins.
The purpose is not simply to establish whether someone is lawfully present in the UK. The employer must also establish whether the individual’s immigration status permits them to perform the particular work being offered.
Some individuals have an unrestricted right to work, while others may have conditions attached to their immigration permission.
Restrictions can potentially relate to matters such as:
Employers should therefore check both the existence and the scope of the individual’s permission to work.
Right to Work checks serve two closely connected purposes.
First, they help employers prevent illegal working.
Second, carrying out a prescribed check correctly can establish a statutory excuse against a civil penalty if an employee is subsequently found not to have the required right to work.
The statutory excuse is therefore an important legal protection for employers.
However, merely asking an employee whether they have permission to work or taking a photocopy of an immigration document does not necessarily establish that protection.
The employer needs to follow the prescribed checking process applicable to the individual’s circumstances.
For workers with time-limited permission, further checks may also be necessary to maintain the statutory excuse.
There are different methods of establishing a Right to Work depending on the worker’s circumstances.
These include:
Many people with UK immigration status can demonstrate their Right to Work digitally using the Home Office online service.
A manual document-based check remains available where the individual presents an acceptable document for which manual checking is permitted.
Eligible British and Irish citizens can prove their identity for Right to Work purposes through an Identity Service Provider using approved Identity Document Validation Technology.
The correct method depends upon the individual’s status and evidence.
Employers should not assume that one method can be used for every worker.
Digital checks are increasingly important as the UK immigration system has moved towards eVisas and digital immigration status.
Where an individual has a status that can be checked online, they can normally provide the employer with a share code together with the information required to access the Home Office checking service.
The employer must then use the employer-facing Home Office service to view the person’s Right to Work information.
The check should establish that:
The employer should retain the required evidence of the online check in accordance with Home Office requirements.
Simply looking at an employee’s own screen or accepting a screenshot provided by the worker is not a substitute for completing the prescribed employer check.
The immigration system has increasingly moved away from physical immigration documents towards eVisas.
An eVisa is a digital record of a person’s immigration status and the conditions attached to their permission.
For employers, this means that many workers who previously might have produced a physical immigration document will instead demonstrate their Right to Work through the Home Office online service. Home Office guidance confirms that some individuals can only evidence their Right to Work through that service.
Employers should therefore ensure that recruitment and HR teams understand digital immigration status.
An employee not possessing a physical immigration document does not, by itself, mean that they do not have permission to work.
Equally, employers should not rely upon an expired or inappropriate physical document where the prescribed process requires an online check.
Manual document checks remain relevant in appropriate circumstances.
Where a manual check is permitted, the employer should obtain an acceptable original document and follow the prescribed checking process.
This involves establishing that the document appears genuine and relates to the person presenting it.
Depending upon the document, employers may need to consider matters such as:
The employer should then make and retain the required copy or record of the document and record the date on which the check was carried out.
The Home Office maintains prescribed lists of acceptable Right to Work documents. Employers should use the current requirements rather than relying upon outdated internal checklists.
British and Irish citizens have an unrestricted right to work in the UK, but employers should still carry out an appropriate Right to Work check.
Depending upon the circumstances, this may be completed manually using an acceptable document or through an eligible digital identity verification process.
Approved Identity Service Providers can use Identity Document Validation Technology for qualifying British and Irish citizens.
Employers should not simply assume that someone is British because of their accent, name, appearance or statement that they were born in the UK.
Consistent checking procedures protect both the employer and applicants from discriminatory recruitment practices.
There are circumstances where an individual may have a Right to Work but cannot demonstrate it through the usual online or document-based process.
The Employer Checking Service (ECS) may then become important.
For example, this can arise where an individual has an outstanding in-time immigration application, appeal or administrative review and their existing immigration rights may continue while the matter remains pending.
Where required, the employer can request verification from the Home Office.
A Positive Verification Notice (PVN) can establish a time-limited statutory excuse for the employer. Current Home Office guidance specifically states that where an employer reasonably believes a worker has an outstanding qualifying application, appeal or administrative review, a Positive Verification Notice may be required to establish the statutory excuse.
Employers should not automatically dismiss or refuse to recruit someone merely because their immigration status requires ECS verification.
An initial prescribed Right to Work check should be completed before the individual starts employment.
Timing matters because carrying out a check after employment has already begun may not provide the employer with the statutory protection that a properly timed check would have established.
Where the employee has a permanent or unrestricted Right to Work and the appropriate check has been completed correctly, a repeat check will not normally be required solely for Right to Work purposes.
Where permission is time-limited, however, the employer may need to conduct a follow-up check at the appropriate time to retain its statutory excuse.
A good HR system should therefore identify workers whose Right to Work is time-limited and generate appropriate reminders before further checks become necessary.
Follow-up checks are an important area of employer compliance.
If an employee’s Right to Work is time-limited, the employer should understand when another check will be required.
Employers should maintain reliable systems recording:
The employer should not simply wait until immigration permission has expired and then investigate.
Advance monitoring allows sufficient time to establish whether the worker has obtained further permission, made a qualifying application or requires verification through the Employer Checking Service.
Holding a Sponsor Licence does not remove an employer’s responsibility to carry out Right to Work checks.
A sponsored worker’s immigration permission should correspond with the employment for which they have been sponsored.
Employers should therefore consider whether:
Right to Work compliance and Sponsor Licence compliance are closely connected but remain distinct responsibilities.
A sponsor that fails to manage its workers correctly can potentially face both illegal-working consequences and Home Office action against its Sponsor Licence.
The financial consequences of illegal working can be substantial.
Under the current civil penalty framework, the maximum penalty is:
£45,000 per illegal worker for a first breach, and
£60,000 per illegal worker for a repeat breach.
For an employer with several affected workers, potential liability can therefore become extremely significant.
The Home Office can consider the circumstances of the breach and the employer’s compliance when administering the civil penalty scheme.
Maintaining effective Right to Work procedures is therefore not merely an HR formality. It is an important part of the organisation’s legal and financial risk management.
Civil penalties are not the only potential consequence.
The Immigration, Asylum and Nationality Act 2006 also provides for criminal sanctions in serious cases involving employers who know or have reasonable cause to believe that an individual is working illegally.
This makes it particularly important that warning signs are not ignored.
Where an employer becomes aware of information suggesting that an employee may no longer have permission to undertake their work, the issue should be investigated promptly and carefully.
At the same time, employers should avoid making rushed decisions about dismissal without establishing the worker’s actual immigration position and considering the relevant employment law implications.
For licensed sponsors, inadequate Right to Work systems can have consequences beyond the civil penalty regime.
The Home Office expects sponsors to maintain effective systems for monitoring their workforce and complying with immigration requirements.
Failures may contribute to Sponsor Licence action, potentially including:
Right to Work records may also be examined during a Home Office sponsor compliance visit.
Sponsor Licence holders should therefore integrate Right to Work checks into their wider immigration compliance systems.
Employers must balance immigration compliance with their obligations under equality law.
Right to Work checks should be conducted consistently.
Employers should not make assumptions about someone’s immigration status based upon:
The Home Office advises employers to conduct checks consistently and not only on individuals who appear likely to be migrants.
A consistent recruitment policy can therefore help an organisation both prevent illegal working and reduce discrimination risk.
The best approach is to establish a standard Right to Work procedure and apply it fairly to all relevant recruits.
Problems frequently arise because an employer has conducted some form of check, but not the prescribed check required to establish a statutory excuse.
Common mistakes include:
Regular audits can identify these weaknesses before they develop into serious compliance problems.
Employers should periodically review their Right to Work systems rather than waiting for a Home Office investigation.
A compliance audit can examine:
Where historical problems are identified, the business can then consider what remedial steps are available.
For Sponsor Licence holders in particular, proactive auditing can form an important part of wider sponsor compliance.
Discovering a potential problem does not necessarily mean that an employee should be dismissed immediately.
The employer should first establish the facts.
Depending upon the circumstances, this may involve:
Employers need to manage both immigration and employment law risks.
Acting too slowly can expose the organisation to illegal-working consequences, while acting prematurely without properly establishing the employee’s position may create separate employment or discrimination risks.
At Knights & Shah Solicitors, we advise employers on Right to Work compliance and the prevention of illegal working.
We can assist with:
Our focus is to help employers establish practical systems that work across recruitment, onboarding and ongoing employment rather than treating Right to Work checking as a one-off administrative exercise.
If you require advice contact Knights & Shah Solicitors.
We provide clear, solicitor led advice, strategic case planning and robust court representation to protect our clients.
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