Right to work checks - requirements and pitfalls: Your questions answered

Conducting right to work checks can be a complicated business, with requirements varying depending on factors such as an employee's immigration status, nationality and start date, and mistakes proving increasingly costly as a result of a Government crackdown on illegal working.

Here, Annabel Mace and May Cheung, from Squire Patton Boggs' business immigration team, answer your questions.

1. We do not have a sponsor licence. Do we still need to do right to work checks?

Prevention of illegal working obligations apply to all businesses in the UK that employ workers regardless of whether the business holds a sponsor licence. Right to work checks should be carried out on all employees who work in the UK. These give the business a statutory excuse against a civil penalty, which can be a fine of up to £60,000 per person found working without permission, should they not have the right to work for the role in which they are employed.

2. Should we be doing annual checks to mitigate the risk of someone working when a right to work has been revoked?

No, the law only requires employers to verify right to work at the start of employment and before any work permission expires, not on a recurring basis. As long as the initial right to work checks meet Home Office requirements, any follow-up checks are done before the permission to work expires, and the employer is not aware that an employee's visa has been revoked, then the employer would be protected against a civil penalty, even if the employee's right to work has been revoked.

3. What are the requirements for employees who have been with us for 10, 20 or more years, so were hired before our processes were as robust as they are now, and where we may not have any check on record?

Right to work checks have been required since 1997, but the list of acceptable documents required to be checked and kept has changed over time. The checks required for employees with a longer service may not be the same as they are now. However, if they are still employed and you find that their files do not have proper proof of their right to work, you should check the requirements in place at the time their employment started. In any event, you may wish to carry out a new check now for peace of mind - although this would not provide a statutory excuse because the check would not have been done before the employment began. If the documents kept previously are not of good quality, you can also ask for new documents now.

Any checks carried out should be done in a non-discriminatory manner.

4.  When using a verified Identity Service Provider (IDSP) for right to work checks, do you need to document that you have conducted an in-person or video check to verify the individual - or does approving the report qualify that? Are the checks done by an Identity Documentation Validation Techology (IDVT) or Digital Verification Service (DVS) provider not sufficient?

An imposter check should be carried out by the employer to confirm that the holder of the document is the same person presenting themselves for work. You need to document the date when the imposter check was carried out to show that it was done before the individual started work. Screenshots of the imposter checks carried out during a video call can be taken but are not required, and provided the employer has a note on file to confirm the date when the imposter checks were carried out and this is recorded in a format that cannot be manually altered, that should be sufficient. Employers should use the IDVT/DVS results to verify the employee's identity when carrying out imposter checks and are not required to check the physical passport again. If imposter checks were not carried out previously, the employer can carry out checks now when auditing files, but that would not provide a statutory excuse.

Right to work checks cannot be outsourced as that will not give the employer a statutory excuse against a civil penalty should the individual turn out not to have the right to work in the future. IDVT/DVS providers can be used to verify the authenticity of valid British and Irish passports only, which is helpful if the original document cannot be presented, but they are not carrying out the right to work check on behalf of the employer. They cannot assist with carrying out the right to work checks and if they do assist with the process, eg for those using online right to work checks, employers may not be able to establish a statutory excuse from the checks completed by the IDVT/DVS provider.  

5. Is it acceptable to review right to work documentation ahead of an offer of employment being made, eg at interview stage? Assuming that copies of verified ID are destroyed for those candidates that are unsuccessful? 

Yes, you can carry out the right to work checks earlier in the recruitment process provided you check all candidates being considered at that stage. In addition, if as a result of that check you learn that the candidate does not have the right to work in the UK, not proceeding with the recruitment process could amount to indirect discrimination unless you have an objective justification, eg the role in question does not qualify for sponsorship. Further information can be found on the Government website.

Right to work checks can be carried out any time before the individual starts work with you. However, if this is left until the first day of work, you run the risk that checks are not carried out at all or not carried out correctly before the employment starts. If you conduct a check on the first day, the time of the check should also be included on your record to show that it was carried out before the individual started work. If checks are carried out on the first day, the business should have a strict policy that employees will not be able to start work unless appropriate documents are provided before their start time. This is because right to work checks must be completed before employment starts in order to obtain a statutory excuse.

Right to work documents should not be kept for longer than necessary, so should be destroyed securely for unsuccessful candidates in line with GDPR.

6. Should right to work checks be carried out by people at a particular level, eg should it be a manager who validates them, or could someone less senior validate them in the absence of a manager? In a large organisation, who would receive the custodial sentence in the event of a criminal prosecution?

The Home Office does not require right to work checks to be carried out by anyone at a particular level of seniority, but the person responsible should be aware of the requirements and what they need to check and keep on file. If they cannot carry out the role appropriately, it could put the business at risk of a civil penalty.

If the person responsible for the checks knowingly hires someone without the right to work, then the person carrying out the checks could be liable to criminal prosecution.  

7. When someone brings a birth certificate they often don't have a physical National Insurance card too. What can we use as suitable documents to prove their NI number to accompany the birth certificate? Would a tax letter with their name and address and NI number be sufficient?

The Home Office right to work checklist sets out the documents acceptable for right to work checks. Under List A documents, an employer can accept a British birth certificate with an official document stating the employee's NI number, issued by a Government agency or their previous employer. As such, a letter from HMRC or the Department of Work and Pensions confirming the NI number or a pay slip/P45 from the previous employer would be sufficient.

The supporting documentation should be in its original form.

If the names on the documents do not match, additional evidence should be sought to confirm the change, eg deed poll, marriage certificate.

8. Can we have a permanent employment agreement with an employee whose right to work has an expiry date, if we conduct a review before the expiry date?

Yes. Provided the employee had the right to work when they started work, they can be employed on a permanent contract. We would also recommend that the agreement includes the right to terminate employment without notice if the employee ceases to have the right to work in the role in which they are employed for any reason. 

9. In what situations would you have to carry out online checks? If you have obtained confirmation of right to work via a share code check and their passport expires during that time (passport is for a foreign national), are we required to obtain a copy of their new passport? If we don't, would this invalidate the right to work?

Online right to work checks are carried out for non-British/Irish nationals who hold electronic visas or status.

The share code can be generated using an old biometric residence permit (BRP) or biometric residence card (BRC) or through their online UK Visas & Immigration (UKVI) account. You do not need to check the passport validity period for employees with a limited visa where right to work checks are carried out online via a share code. Passport copies in those cases are not required for right to work check purposes and employers will only need to save the online profile page showing the individual's photo, visa expiry date and any restrictions to their conditions of work. If there are technical difficulties in generating a share code or using the online right to work check system, the employer should submit an Employers Checking Service (ECS) request.

10. As for evidence for the Employers Checking Service (ECS) check, does the employee need to provide documents or is it enough if they provide the reference number? Do you need to wait until the visa has expired before making the ECS request? What if the individual does not give consent for the ECS request?

For an existing employee, the employer should ask for proof of the application itself (not just the reference number), so they can check it was submitted before or on the expiry date of the last visa (known as an 'in-time application'). If the employer had previously obtained a statutory excuse, proof of an in-time application will extend the statutory excuse for 28 days within which the employer can obtain the results from the ECS request. If the check is for a new hire, the proof of application is less important, as the employer must receive the Positive Verification Notice (PVN) before it can allow the individual to start work.

This should confirm the individual's work conditions and follow-up checks should be carried out every six months until a decision is reached.

If the application has been submitted much earlier than the expiry date, then the ECS request can be submitted with just the reference number as it is clear that the application has been submitted in time. Employers do not need to wait until the visa has expired before they submit the ECS request, but they should allow a couple of weeks from submission of the application, to ensure the application is registered on the Home Office records.

If the individual does not give consent for the ECS request, it cannot be submitted and employment may need to be ended unless the individual can provide alternative proof of their right to work.

11. What happens if an employee has had a successful right to work check but their visa expires pending a renewal interview with the Home Office? What are an employer's options if the subsequent interview concludes with a non-renewal of the visa?

If the employee has applied to extend their permission to stay in the UK, provided the application was submitted to the Home Office online before the expiry date and is regarded as a valid application, then they can continue to remain and work in the UK based on the visa conditions of their last visa. This would be the case even if their appointment at the visa centre is after the visa expiry date. While the application is pending, the employer must submit a request to the Home Office's Employer Checking Service (ECS) (see below for more details) to obtain a Positive Verification Notice (PVN).

For existing employees, where an employee has provided reasonable evidence of an in-time application and the employer has previously established a statutory excuse by correctly completing a right to work check in relation to the employee's previous permission, the employer's statutory excuse is extended by 28 days from the visa expiry date, before the end of which period it must obtain a PVN. This will enable the employee to continue working pending the outcome of their visa application for up to six months from the date the PVN is issued. If the application is still pending or the employee has submitted an appeal or application for administrative review before the end of the six-month period, the employer should submit a new ECS request to obtain a further PVN before the end of that six-month period. If the employee's application is rejected after the original visa expiry date (and not appealed/subject to administrative review), or the ECS issues a Negative Verification Notice (NVN), the employer should take advice on the potential termination of their employment as soon as possible. In the case of a candidate with a pending application (as opposed to an existing employee), the employer must obtain a PVN before the candidate can start work.