Right to Work Checks

This month we are visiting the fundamentals of Right to Work (RTW) Checks.  All employers in the UK have a responsibility to prevent illegal working.  This is becoming not only more and more important, but increasingly challenging, with additional pressures on companies to source skilled and talented people, coupled with the evolving legislative, political and technological landscape relating to immigration and recruitment.

The majority of this article is applicable to all UK and Ireland in relation to the process of RTW Checks.  However, it is also worth noting that there are differences in qualifications and requirements in Ireland by nationality, being that Ireland is still part of the European Union (EU).

Below we look at some of the key questions around the process, and consider what employers might need to know.

Employers Conducting RTW Checks FAQ’s

Q1) What is the “Statutory Excuse”?

All employers are under a legal duty to prevent illegal working and can be subjected to penalties including fines of up to £45,000 for each illegal worker employed, rising to £60,000 for repeat breaches. There is also the risk of a criminal conviction for employing someone where the organisation had ‘reasonable cause to believe’ they did not have the right to work in the UK yet employed, or continued to employ, them anyway. It can also lead to disqualification as a company director, being prohibited from sponsoring migrants and the seizure of earnings made because of the illegal work.

If you conduct the required checks as set out in legislation and guidance such as the code of practice, you will have a statutory excuse against liability for a civil penalty in the event you are found to have employed someone, who is disqualified from carrying out the work in question, by reason of their immigration status.

This means that if it is found that you have employed someone who does not have the right to do the work in question, but you have correctly conducted right to work checks as required, and can demonstrate that, you will not receive a civil penalty for the illegal worker in question, as you will have a Statutory Excuse.

Q2) What is a Right to Work Check?

Right to work checks should be conducted before employment starts, and repeated if the individual’s right to work in the UK is time limited, in advance of it expiring. These checks involve a three-step process:

1. Obtain the documents or other evidence of right to work.
2. Check that the documents are genuine and the person presenting them is their rightful owner and the prospective employee.
3. Make a copy of the documents, online check or identity document validation technology (IDVT) check and retain it for the future.

Manual checks

These are available for use for people of all nationalities, although for citizens of anywhere other than the UK and Ireland, an online check (see below) can be carried out where they have a share code. Typically, this involves checking a passport (or passport card for Irish nationals) or birth certificate. The full list of acceptable documents can be found in list A on gov.uk’s Employers’ right to work checklist at  https://assets.publishing.service.gov.uk/media/67d7e1654bcf261f8233f82e/RTW+Checklist.pdf  These documents indicate the individual has an unlimited right to work and remain in the UK. Documents on list B, on the other hand, show the individual’s right to work in the UK is time limited.

Online checks

These use the Home Office online system and are for non-UK or Irish nationals who have an online share code.

Digital checks

Reserved for UK and Irish citizens only, the services of an identity service provider (IDSP) are utilised for this form of check. They use IDVT to check right to work documentation remotely. For these checks, the individual must use a valid document that has not expired.

The Home Office also offer a printable PDF Right to Work Checklist, which provides a structured and consistent process for checking, whilst also providing a record for reference.  Link for checklist below;

https://assets.publishing.service.gov.uk/media/67d7e1654bcf261f8233f82e/RTW+Checklist.pdf

Q3) Making the Checks

When Checking the applicant’s original documents;

• Ask to see the applicant’s original documents. You can no longer accept biometric residence cards or permits. Ask the applicant for a share code instead.
• Check that the documents are valid with the applicant present.
• Make and keep copies of the documents and record the date you made the check.

What to check

You need to check that:

• the documents are genuine, original and unchanged and belong to the person who has given them to you
• photos are the same across all documents and look like the applicant
• dates of birth are the same across all documents
• if 2 documents give different names, the applicant has supporting documents showing why they’re different, such as a marriage certificate or divorce decree

If the applicant is not a British or Irish citizen, you’ll also need to check that:

• the dates for the applicant’s right to work in the UK have not expired
• the applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
• for students you see evidence of their study and vacation times

Follow-up checks

If your employee’s right to work is time-limited, you’ll need to check their documents again when it’s due to expire.

Q5) Record Keeping

When you copy the documents:

• make a copy that cannot be changed, for example a photocopy
• make sure the copy is clear enough to read
• for passports, copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including endorsements, for example a work visa
• for all other documents you must make a complete copy
• keep copies during the applicant’s employment and for 2 years after they stop working for you
• record the date the check was made
• Make sure you follow data protection law.

If the job applicant cannot show their documents;

You must ask the Home Office to check an employee’s or potential employee’s immigration status if they cannot show their documents or online immigration status.

This could be, for example, because they:

• have an outstanding appeal, review or application with the Home Office
• in the UK before 1989 and do not have documents to prove their immigration status or right to work

You must also ask the Home Office to check their status if they have:

• a digital or non-digital Certificate of Application that says you need to ask the Home Office to check their right to work
• an Application Registration Card
• Application Registration Cards must state that the work the employer is offering is permitted.

The Home Office will send you a ‘Positive Verification Notice’ to confirm that the applicant has the right to work. You must keep this document.

Q6) Common Mistakes!

• Accepting Documents which may demonstrate identity but not right to work, such as a Driving License.
• Not making checks in a way which will offer a “statutory Excuse”, for example not dating the copy or not copying document in full.
• Not maintaining records which are accessible, accurate and up to date and which are also available for inspection if required (UKBA, Home Office etc).
• Not taking proactive action when expiration dates are approaching, such as contact with employee and requests for updated documentation.
• Not checking all prospective employees consistently. This may lead to errors or things “slipping through”.  It may also lead to incorrect assumptions, and even discrimination in terms of nationality.