The civil and criminal offences
If an employer wishes to avoid liability, and potential revocation of its Skilled Worker / Intra-Company Transfer sponsor licence, if it holds one, for employing someone who does not have the appropriate immigration permission to undertake their role in the UK, prior to the individual commencing employment, the employer should undertake a right to work (“RTW”) check. If the employer does not undertake the appropriate check and is found to be employing an illegal worker, that employer may be found to have committed a civil offence. This is punishable by a civil penalty of up to £15,000 per illegal worker for a first offence and up to £20,000 per illegal worker for each subsequent offence. There are a range of other sanctions that may be taken against the employer, such as revocation of a sponsor licence, as well as against senior decision makers individually within the employer.
There is also a criminal offence of “knowingly” employing someone who does not have the right to work in the UK. There is a further criminal offence of employing someone who does not have the correct immigration permission where the employer had “reasonable cause to believe” that they did not. If an employer is found to have committed a criminal offence, penalties include liability to pay an unlimited fine and / or a prison sentence of up to five years.
It is therefore vital that all employers understand how to comply with the UK legislation on the prevention of illegal working in the UK. This includes, if an employer wishes to establish a “statutory excuse” (a defence) against liability for a civil penalty, undertaking a valid RTW check prior to the start of the individual’s employment. It is important to note that undertaking a valid RTW check does not establish defence against criminal liability.
Undertaking a RTW check
The RTW check may be made using one of the following methods:
- manual document check;
- Home Office online right to work checking service;
- Employer Checking Service, which is also an online service).
When does the check have to be made?
Employers must complete the RTW check before a potential employee starts work. A number of employers, for purely practical reasons, will undertake the check on the first day of an individual’s employment. In those circumstances, we suggest that a member of HR arranges to meet the individual before their start time. For example, if their official start time is 9.30am, the RTW meeting could be set for 9.00am. However, employers should be clear that the individual’s employment will not commence until the RTW check has been completed satisfactorily. It is advisable for employers to seek employment law advice on their standard offer letters and employment contracts to ensure that they include a condition which states that an individual’s employment will not commence until satisfactory RTW evidence has been provided.
For those employees who have time limited immigration permission, employers must diarise to conduct a follow up check before the expiry date of that permission.
The manual document check
The Home Office has produced lists of documents that are acceptable for an individual to rely upon to demonstrate their RTW. These are known as List A and List B and can be found here:
A current employee of the employer must review the original document(s) in the presence of the individual (either physically or via live video link). Unfortunately, it is not possible to outsource the RTW check to a third party.
The employer should be certain that the document(s) produced are genuine and the person presenting them is the rightful holder. This does not require employers to be experts in spotting fake documents. However, they should be looking for obvious issues with the documents presented. In particular, the employer should check:
- that photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
- that expiry dates for immigration permission to be in the UK have not passed;
- any work restrictions to determine if the individual is allowed to do the type of work on offer (for students who have limited permission to work during term-times, employers 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);
- that the documents are genuine, have not been tampered with and belong to the holder; and
- that the reasons for any difference in names across documents can be evidenced (for example, by being provided with an original marriage certificate, divorce decree absolute or deed poll).
A person producing a List A document has the permanent right to work legally in the UK. However, if Document 4 of List A is produced on its own, it will not constitute a statutory defence. In this situation, the employer must also contact the Home Office’s Employer Checking Service (see below for further details) to obtain a Positive Verification Notice.
The employer must retain a clear copy of all the required RTW documents which have been checked. The copy must be in a format that cannot be altered and can be retained either as a hard copy or electronically. A record of the date of the check must be made. However, simply writing the date on the copy of the document is not sufficient. Instead, the employer should write on the copy “The date on which this right to work check was made: [insert date]”.
If the RTW evidence is a passport, the employer must copy the pages containing:
- the passport expiry date;
- the holder’s nationality, date of birth and signature;
- biometric details;
- a photograph and any information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question along with any immigration permission expiry date.
Any other document should be copied in its entirety, for example, both sides of a Biometric Residence Permit.
Home Office’s Online Right to Work check
At present, a check via the Home Office’s online RTW service may be conducted on individuals with:
- a biometric residence permit;
- a biometric residence card;
- status issued under the EU Settlement Scheme;
- status issued under the points-based immigration system;
- a British National Overseas (BNO) visa; or
- a frontier workers permit.
EEA and Swiss nationals who have applied to remain in the UK under the EU Settlement Scheme, or are sponsored under the Skilled Worker or Intra-Company Transfer categories, are granted immigration permission digitally. For these individuals, employers must use the Home Office online RTW check service, since it is not possible to conduct a manual check for individuals who only hold digital immigration permission:
Before conducting the online RTW check, the employer must request that the individual access their online Home Office records. Once the individual has done this, they are issued with a “share code” which they need to provide to their prospective employer, together with their date of birth, so that the employer can view their RTW status on-line. In order to obtain a share code, the individual must go to one of the following webpages:
View and prove your immigration status - GOV.UK (www.gov.uk) (for EEA nationals)
Prove your right to work to an employer - GOV.UK (www.gov.uk) (for non-EEA nationals)
The share code is valid for 30 days only so the individual should forward it to the employer as soon as they obtain it along with their date of birth. The individual must also provide their employer with permission to access their online record.
In the presence of the individual (in person or via live video link), the employer should go to the Home Office website (here) and enter the share code together with the individual’s date of birth. This will enable the employer to access the individual’s online information. The employer must check that the photograph on the online RTW check is that of the individual and that the information matches them.
The employer must retain evidence of the online RTW check by saving the “profile” page confirming the individual’s eligibility to work, which is the page which includes the individual's photo and confirms the date on which the check was conducted. The employer must print this page or save it as a PDF or HTML file.
Employer Checking Service
For some individuals, for example those who are unable to provide the required documentation evidencing their RTW in the UK because they have submitted an immigration application to the Home Office which has yet to be decided, employers will have to use the online Employer Checking Service (“ECS”) to complete the RTW check, which can be found here:
In order to use this service, the employer must obtain the individual’s permission together with the following information from the individual:
- full name;
- date of birth;
- job title;
- hours worked per week;
- home address;
- Home Office reference number or case ID (if they have either).
The ECS should provide a response within five working days of receipt of the request. If a Positive Verification Notice (“PVN”) is received, this provides a defence against a civil penalty for six months. Before the end of the six months, a further RTW check must be made.
In response to the Covid-19 pandemic, the Home Office brought in an adjustment to the normal RTW process. It covers all checks made from 30 March 2020 until 1 September 2021.
Under the adjusted RTW check, an employer can undertake a manual RTW check on the basis of scans or copies of documents instead of seeing the original documents. The concession was initially due to end on 17 May 2021 but was extended until 20 June 2021. It has since been extended again until 1 September 2021. It remains to be seen if it will be extended again. However, if lockdown if fully lifted on 19 July 2021 and the “work from home where possible” guidance ceases to apply, this is unlikely.
It is worth noting that a number of employers and stakeholders are requesting that the concession be made permanent as a result of the likely long term increase in flexible / hybrid working practices. Interestingly, the Conservative Manifesto 2019 stated:
“We will encourage flexible working and consult on making it the default unless employers have good reasons not to.”
It is therefore possible that something similar to the current Covid-19 adjusted concession will be permanently introduced in the future.
Retention of RTW documents
All RTW check evidence should be kept securely for the duration of the employee’s employment and for a period of two years afterwards. The copies may then be safely destroyed.
Current EEA / Swiss employees
If an employer identifies any EEA / Swiss employees who commenced employment on or before 30 June 2021 and who were resident in the UK before 30 December 2020 who has not made their application to the EU Settlement Scheme before 30 June deadline, they should advise them to submit an application immediately. The Home Office has stated that it is prepared to accept late applications is some circumstances and has also introduced a concession whereby, provided the application is submitted within 28 days of the issue being identified by the employer, the employer may continue to employ the EEA / Swiss national. Once the EEA / Swiss national has made their application, they should be issued with a Certificate of Application. They should provide this document to the employer so that that the employer can contact the ECS to obtain a PVN. As mentioned previously, before the end of the six month validity of the PVN, the employer must undertake a further RTW check.
There have been a number of changes to the RTW check process in the last few months, the most recent of which was primarily to provide guidance to employers regarding the process that must be followed for EEA and Swiss nationals as a result of Brexit and the end of the grace period on 30 June 2021.With the potential severity of a civil or criminal offence, employers should ensure they are familiar with the current RTW check requirements and have the appropriate processes in place. Those employers who have a sponsor licence should be particularly aware that failing to meet the RTW requirements may result in revocation of their licence. This would potentially lead to the immigration permissions of all their current sponsored employees being cancelled and may also adversely impact the employer’s ability to recruit migrants requiring sponsorship in the future.