Right to work checks standard

Introduction

1.1 Importance of right to work checks

1.1.1   A right to work check determines whether an individual has the legal right and permission to work in the UK.

1.1.2   Employers risk facing a civil penalty if they are found to be employing an illegal worker and they haven’t carried out a correct right to work check. A civil penalty can be anything up to £60,000 per illegal worker. Criminal sanctions may also apply where the employer is found to have knowingly appointed or continues to employ an individual who does not have a right to work in the UK.

1.1.3   The Immigration, Asylum and Nationality Act 2006 (amended by the Immigration Act 2016) provides employers with a statutory excuse against a civil penalty where they can clearly demonstrate that they have carried out all the necessary checks to mitigate any risks of employing illegal workers.

Minimum requirements

2.1 Who requires a right to work check and when?

2.1.1   Employers must carry out a right to work check on all successful applicants before they can be allowed to take up employment.

2.1.2   No assumption should be made about an individual’s right to work on the grounds of colour, race, nationality, ethnic or national origins, accent, or the length of time they have been resident in the UK.

2.1.3   In the event that an employer is found to be employing an illegal worker, they would not be liable for a civil penalty if they can prove they conducted the appropriate checks set out in Home Office guidance. This is called a statutory excuse.

2.1.4   There are three types of right to work check:

• a manual right to work check
• an online Home Office right to work check (non-British or  non-Irish citizens)
• a right to work check using Identity Document Validation Technology (IDVT) via the services of a provider (British and Irish citizens only).

2.1.5   The type of check an employer should conduct will depend on the status of the individual you intend to employ and, in some circumstances, the individual’s preference. See sections 2.2 online checks, 2.3 using an IDSP and 2.4 manual checks  for more information.

2.2 Online Home Office checks

2.2.1   Non-British and non-Irish nationals wishing to work in the UK can confirm their right to work through the Home Office online checking portal, the digital service supports checks in respect of those who hold: 

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

2.2.2   Individuals will provide a prospective employer with their share code so that employers can check their right to work status digitally instead of requiring them to present documentary evidence. The share code is generated when the individual accesses their details online. 

2.2.3   Since 06 April 2022, it has been mandatory for holders of the Biometric Residence Card (BRC), a Biometric Residence Permit (BRP) and Frontier Work Permit (FWP) to evidence right to work using the Home Office checking portal. Employers are no longer be able to accept physical biometric cards for BRC, BRP and FWP holders to evidence right to work.

2.2.4   Where employers can evidence that they have undertaken a right to work check using the Home Office online portal and have confirmed that the photograph on the check is of the individual presenting themselves for work, this will provide them with a statutory excuse. The same follow up checks must be undertaken where the individual’s right to work status indicates that they have limited leave to remain.

2.2.5   Further details about how the Home Office online portal works can be found on the gov.uk website.

2.3 Using an Identity Service Provider (IDSP)

2.3.1   British and Irish nationals are now able to confirm their right to work through a new digital system, the legislation took effect from 06 April 2022. The digital checks of right to work allow employers to verify British and Irish nationals’ eligibility to work, via a certified third party IDSP, without having to check physical documents.

2.3.2   Employers will still be required to confirm that the photograph provided to the third-party provider they use is a true likeness of the prospective employee. This can be in person or via a video call, as outlined in Home Office guidance. You must also retain a clear copy of the identity check output for the duration of employment and for two years after the employment has come to an end.

2.3.3   There will be occasions where a digital right to work check for British and Irish citizens will not be possible and you will be required to carry out a manual check of the document described in section 2.4 to obtain a statutory excuse e.g. if an individual is reliant upon an expired British or Irish passport. See Home Office guidance for more information about the documents required for the purposes of verifying right to work digitally via a certified third party provider. 

2.3.4   A list of certified providers is available on the gov.uk website and employers interested in procuring a certified provider can engage directly with those providers. 

2.3.5   Should an employer choose to use an IDSP they will need to become familiar with the regulations, and to ensure that staff involved in arranging identity and right to work checks have the necessary training on for example, what information they must obtain from the third party to confirm a candidate’s identity; what the information can be used for; and what other requirements they still need to fulfil to establish eligibility to work.

2.3.6   Find out more about verifying right to work digitally via a certified third party provider in the Home Office employer’s guide to right to work checks.

2.4 Manual checks

2.4.1   It will not be possible to conduct an online or digital right to work check in all circumstances, as not all individuals will have an immigration status that can be checked online or digitally, or in some circumstances an individual may choose not to demonstrate their right to work using the online or digital services. In such cases employers should conduct a manual check.

2.4.2   When conducting manual checks, there are three steps that employers must take to confirm an individual has the right to work in the UK:

1. Obtain the person’s original documents from List A or List B of the acceptable documentary evidence as outlined in section 2.5.
2. Check all documentary evidence with the holder to verify that the documents are genuine, that the individual is the rightful owner of those documents, and they are permitted to do the type of work being offered.
3. Make a clear copy of all documentary evidence seen and record the date of the check (documents may be photocopied or scanned and uploaded onto the electronic staff record (ESR) or other internal HR system).

2.4.3   Employers should retain all copies securely for the duration of the individual’s employment, and for at least two years after the employment has come to an end. Copies of personal information must only be retained for the purpose of establishing a statutory excuse and retained in line with data protection laws. This includes ensuring you have a documented lawful basis for processing any data as per the Information Commissioner’s Office (ICO) guidance.

2.4.4   Employers will need to refer to Home Office guidance which can be found on the gov.uk website:

• Right to work checks: employer guidance.
• An employer’s guide to the administration of the civil penalty scheme.
• The code of practice on preventing illegal working: civil penalty scheme for employers.

2.5 Acceptable right to work documents

2.5.1   The Home Office provides guidance which outlines the type and range of acceptable right to work documents (List A and List B) that must be obtained and verified to prove an individual’s right to work in the UK.

2.5.2   Employers must see:

• one document or a combination of documents as specified in List A

OR

• one document or a combination of documents as specified in List B.

2.5.3   You must not accept any other documents or combination of documents other than those stipulated by the Home Office in Lists A and B to retain a statutory excuse.

2.5.4   All documents must be original and show that the holder is entitled to do the type of work being offered.

2.5.5   Those that contain an expiry date should be valid and current. Photocopies and documents downloaded from the internet must not be accepted. There are a small number of exceptions to the valid and current rule, which include an out-of-date UK passport. 

2.5.6   An indefinite leave to remain stamp in an expired passport must not be accepted.  Where an individual presents an expired passport with indefinite leave to remain, employers should provide the individual with opportunity to obtain and provide current documents, such as a Biometric Residence Permit.

2.5.7   Please consult the most up-to-date UK Visas and Immigration employer’s guide for further information if you are unsure what can be accepted.

2.6 Frequency of checks

2.6.1   Employers are required to carry out an initial right to work check to prevent illegal working on all individuals they intend to employ. Once you have completed this check, you will be required to carry out follow-up right to work checks if the individual’s permission to be in the UK and to do the work in question is time-limited to ensure you retain a statutory excuse. There are two categories of statutory excuse:

• Continuous excuse - this is where an individual can provide one document or combination of documents from List A and there are no restrictions on their right to work in the UK. Once documents from List A have been checked, copied, and retained, you do not need to conduct any repeat checks on the worker for the duration of their employment. This also applies where documentary evidence shows that the individual has indefinite leave to remain in the UK.
• Time-limited excuse - this is where an individual can provide a document or combination of documents from List B which means they have time-limited and restricted right to work in the UK. The individual’s permission to work in the UK ends when their visa or other right to work document expires. Some visas carry restrictions as to the number of hours the individual can work and/or the type of work they can do. This means that you will need to conduct a repeat check before the expiry date of the visa if you wish to continue to employ them. The frequency of any follow-up checks depends on whether the documents presented are from Group 1 or Group 2 in List B.

2.6.2   It is crucial that employers record the date of any follow-up checks required on employees who have limited leave to remain in the UK, and that these checks are completed at the correct time to retain a statutory excuse.

2.6.3   The statutory excuse will continue for a further period of up to 28 days from the expiry date given in the employee’s document, where you can obtain the necessary assurances that they:

• have submitted an in-time application to the Home Office

Or

• have made an appeal against an immigration decision before the expiry date specified in their document.

2.6.4   Where relevant, it should be made a contractual condition for the individual to maintain their right to work status for the full term of employment. They must immediately notify the employer if their immigration status changes, or they cease to have the right to work in the UK.

2.7 In-time applications

2.7.1   An employee’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. Any right to work will continue until the outcome of the application is determined.

2.7.2   Employers must:

• Seek acceptable proof of an in-time application being made, such as a Home Office acknowledgement letter or proof of postage which indicates that an application was sent to the Home Office.
• Go to the Home Office’s online employer checking service portal to confirm that an application has been received and the individual continues to have a right to work while their application/appeal is being determined. The Home Office advises to wait for 14 days after the individual has submitted their application or appeal to ensure this has been registered. It is employers’ responsibility to inform prospective or current employees when they are carrying out a check with the service.

2.7.3   The Home Office will then issue you with a positive verification notice which confirms that the named individual is permitted to carry out the type of work in question. Positive verification notices are valid for a period of six months from the issue date.

2.7.4   Employers are required to take copies of all documentary evidence, including the positive verification notice, to retain a statutory excuse.

2.8 Validating, copying, and storing documents

2.8.1   When validating documents presented by individuals, you must check that:

• photographs and dates of birth are consistent across documents and with the appearance of the individual
• expiry dates for permission to be in the UK have not passed
• there are no work restrictions to prevent the individual doing the type of work being offered
• the documents are genuine, have not been tampered with and belong to the holder; and
• documents with different names can be explained by providing further evidence (for example, marriage/civil partnership certificate, divorce certificate, deed poll, adoption certificate or statutory declaration).

2.8.2   Employers must keep a record of every document checked. This can be hardcopy or a scanned copy in a format which cannot be manually altered. A record of the date on which a check was made must be retained, either by making a dated declaration on the copy (using the wording ‘the date on which this right to work check was made: [insert date]’ or in a separate record, held securely, which can be shown to the Home Office upon request to establish your statutory excuse. For Home Office purposes, simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken.

2.8.3   In the case of a passport or other travel document, the following parts must be photocopied or scanned:

• Passports: any page with the document’s expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.
• All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card.

2.8.4   Keep a record of every document you have copied in line with data protection laws. Copies of the documents should be kept securely for the duration of the individual’s employment and for a further two years after their employment has ceased. The person taking the copy must sign and date it to show it has been certified.

Failure to carry out checks

3.1.1   Failure to carry out the necessary checks can result in the Home Office issuing the employer with a civil penalty of £60,000 per illegal worker or imposing up to five years’ imprisonment and/or an unlimited fine where they are found to have knowingly employed an illegal worker.

3.1.2   Migrants found to be working illegally may also face a maximum custodial sentence of six months and/or an unlimited fine (in England and Wales). Wages paid to an illegal migrant will be recoverable under the Proceeds of Crime Act 2002.

3.1.3   In certain circumstances, immigration officers can close an organisation for up to 48 hours or place it under special compliance requirements where it is suspected of employing an illegal worker. Where employers can provide the sufficient evidence that all right to work checks have been conducted and that they have taken all reasonable steps to prevent illegal working, the closure notice may be cancelled.

Right to work evidence - scenarios

4.1 EEA nationals

4.1.1   The UK has left the European Union (EU) and the EU Withdrawal Act 2020 ended free movement law in the UK on 31 December 2020. There followed a grace period of six-months (until 30 June 2021) during which relevant aspects of free movement law were saved to allow eligible EEA citizens and their family members resident in the UK by 31 December 2020 to apply to the EU Settlement Scheme.

4.1.2   Since 1 July 2021, EEA nationals and their family members have required immigration status in the UK, in the same way as other foreign nationals. They can no longer rely on an EEA passport or national identity card to prove their right to work. EEA nationals must demonstrate their right to work either with the pre-settled or settled status under the EU Settlement Scheme (EUSS) or with a visa under the points-based immigration system.

4.1.3   Most EEA nationals resident in the UK will have made an application to the EUSS and will have been provided with digital evidence of their UK immigration status. They will evidence their right to work by sharing their immigration status digitally, using the Home Office online right to work checking service. This service allows employers to check an individual’s right to work status online instead of requiring them to present documentary evidence.

4.1.4   As of September 2023, the Home Office will automatically extend EEA pre-settled status holders’ immigration status by two years before the current grant of pre-settled status expires, to ensure individuals do not lose any rights and entitlements where a further application to the EUSS has not been made. The extension will be applied automatically to a individual’s digital status by the Home Office one to two months before the expiry date of their pre-settled status. This will be reflected in their digital profile when proving their right to work using the Home Office online service. 

4.1.5   Employers are still required to conduct a right to work check and retain a result of this check for their records for those individuals who hold pre-settled status. As EUSS pre-settled status will be extended shortly before the original expiry date, any follow-up check on an individual who held pre-settled status should be made in the last month of their original period of leave to ensure that the extension is reflected on their status.

4.1.6   There will be other EEA nationals who hold another form of leave to remain in the UK, by way of a physical document, for example an endorsement in a passport, visa or vignette. Those are included in the Home Office acceptable right to work document lists.

4.1.7   Irish nationals continue to have the right to work in the UK under Common Travel Area arrangements and as such they can continue to use a passport or passport card to prove their rights in the UK. They did not have to apply for status under the EU Settlement Scheme, but may have chosen to do so, meaning they can also use their settled or pre-settled status to prove their right to work.

4.1.8   Employers should refer to Home Office guidance on employing EEA citizens in the UK for more information.

4.1.9   EEA nationals can be directed to Home Office guidance on viewing and proving their immigration status for support with the process.

4.2 Non-EEA nationals

4.2.1   Non-EEA nationals can use an immigration status document listed in the Home Office acceptable right to work documents to prove their right to work.

4.2.2   Those who hold a biometric residence permit, biometric residence card or status under the points-based immigration system can also prove their right to work using the Home Office online checking service. If an individual uses the online service, this will generate a share code so that employers can check their right to work status online instead of requiring them to present documentary evidence.

4.3 Asylum seekers (permission to work and volunteer)

4.3.1   An asylum seeker is an individual who has made an application for asylum, but whose application is yet to be decided upon. Asylum seekers generally do not have the right to work in paid employment in the UK. For the very small number who do, it will state employment permitted or allowed to work on their application registration card (ARC).

4.3.2   Employers must seek a positive verification notice from the Home Office to confirm the individual’s status and right to work in the UK before they can be allowed to start paid employment. This can be done by going to the online employer checking service portal. It is employers’ responsibility to inform prospective or current employees when they are carrying out a check with the service.

4.3.3     The Home Office has a policy to support asylum seekers volunteering for charities or public sector organisations. Therefore, asylum seekers are able to undertake voluntary roles whilst their claim is considered without being granted permission to work. More details about this can be found on the gov.uk website.

4.3.4   Further information about employing asylum seekers can be found in the Home Office guidance for employers on preventing illegal working in the UK.

4.4 Refugees

4.4.1   A refugee is an individual who has had a positive decision on their claim for asylum under the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention). Individuals who do not meet the Refugee Convention’s criteria for refugee status may qualify either for humanitarian protection (granted for five years), or discretionary leave to remain (granted for up to three years).

4.4.2   Refugees have rights under the Geneva Convention to be treated no less favourably than citizens of the host nation. This means that they can work and are able to move and reside freely in the UK. They are also eligible for mainstream benefits and services, including access to education and NHS treatment, in the same way as UK citizens.

4.4.3   Refugees with humanitarian protection or discretionary leave to remain are entitled to apply for further leave before their right to remain expires. A refugee’s entitlement to employment and training continues during this period of waiting for a decision on their application.

4.4.4   They are not a part of the points-based immigration system. If granted leave to remain in the UK, a refugee will be issued with a Biometric Residence Permit and/or Home Office Immigration Status Document (ISD) which will indicate their refugee status. Employers may ask the individual to present this and accept this as evidence of their identity. Employers should ask the individual for a share code to evidence their right to work using the Home Office online service. For more detailed information on acceptable documentation for different groups, see the Home Office guidance for employers on preventing illegal working in the UK.

4.5 International students

4.5.1   International students are often able to work part time (20 hours per week) when studying in the UK, and full time during their holidays and any period between completing their studies and their permission to be in the UK expiring. Some international students have no right to work at all.

4.5.2   Before employing a student with limited right to work during term time, you must obtain evidence of their academic term and vacation dates that cover the duration of their studies in the UK for which they will be employed by you. You should request this evidence from the student.

4.5.3   This evidence should originate from the education institution that is sponsoring the student. You may obtain the dates for the entire duration of the course or, if this is not possible, you may obtain and copy them annually providing the information you hold is current at the time of the student’s employment.

4.5.4   Acceptable evidence includes one of the following:

• A printout from the student’s education institution’s website, or other material published by the institution setting out its timetable for the student’s course of study. You should check the website to confirm the link is genuine.
• A copy of a letter or email addressed to the student from their education institution, confirming term-time dates for the student’s course.
• A letter addressed to you as the employer from the education institution, confirming term-time dates for the student’s course.

4.5.6   In exceptional circumstances, for example where the student is following a course timetable that differs from the one published, you may need to obtain bespoke evidence from the sponsor. It is important to remember that you require this evidence to establish and retain a statutory excuse against liability for a civil penalty.

4.6 Staff acquired under transfer of undertakings protection of employment

4.6.1   Employers who acquire staff because of a transfer of undertaking protection of employment (TUPE) transfer cannot rely on another employer’s right to work checks. The new employer has a grace period of 60 days to undertake the appropriate document checks following the date of transfer.

4.6.2   This grace period applies only at the point of transfer and does not apply to any subsequent follow-up checks that might be required. 

What to do if an individual does not have the right to work

5.1.1   If, after carrying out these checks, it is established that the individual  is not permitted to work in the UK, then you must not allow them to commence employment.

5.1.2   If the individual is likely to obtain the relevant permission within an acceptable period, then it is at the discretion of the employer as to whether they agree to wait until the permission is received or withdraw the offer of employment. If there is no evidence that the relevant permission is going to be forthcoming promptly, then the offer of employment must be withdrawn.

Other resources

Further detailed guidance on preventing illegal working is available on the Home Office website.

To verify a candidate's identity, employers must refer to the identity checks standard.

Summary of updates