As of 1 July 2021, citizens and their family members from the European Economic Area (EEA) require immigration status in the UK, in the same way as other foreign nationals.
As such, they are no longer able to rely on an EEA passport or national identity card to prove their right to work.
As all employers in the UK have a responsibility to stop illegal working you must conduct the correct right to work checks.
These checks should ensure that the person you employ is not disqualified from carrying out the work in question due to their immigration status.
If you follow the Government’s guidance and Code of Practice, you will be given a statutory excuse against liability for a penalty if it is later revealed that the person you employed did not have the right to work in the UK.
As well as conducting a right to work check before employing a person, you should conduct regular follow-up checks on workers, as many individuals’ right to work is time-limited and may be dependant on a visa.
Employers can conduct two types of right to work check – a manual document-based check and an online check. Both of these methods, if conducted correctly, will give an employer the necessary statutory excuse.
Conducting a manual document-based right to work check
The process for conducting a manual document-based right to work check involves three steps, all of which need to be completed before the commencement of employment.
If these are not conducted correctly, in the prescribed manner set out by the Government, then an employer loses their statutory excuse and may be subject to fines.
Step 1: Obtain – You must obtain original, acceptable documents from an employee. These are broken down into two lists:
List A – a range of documents you may accept from a person who has a permanent right to work in the UK. If you conduct the right to work checks correctly before employment begins, you will be protected for the duration of that person’s employment.
List B – A range of documents you may accept for a person who has a temporary right to work in the UK. If you conduct the right to work checks correctly, you will establish a time-limited statutory excuse. You must conduct follow-up checks to retain this protection.
The Government has produced a useful checklist to help you confirm you have the correct documents, which can be found here.
Step 2: Check – It is the employer’s responsibility to confirm that the documents provided are genuine and that the presenting them is the person being hired, the rightful holder and allowed to do the type of work you are offering.
The Government’s guidance says that employers should check:
- Photographs and dates of birth are consistent across documents and with the person’s appearance to detect impersonation;
- Expiry dates for permission to be in the UK have not passed;
- Any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you 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);
- The documents are genuine, have not been tampered with and belong to the holder; and
- The reasons for any difference in names across documents can be explained by providing evidence. These supporting documents must also be photocopied and a copy retained.
If an employer is presented and accepts false documentation, they will only be liable for a civil penalty if it is ‘reasonably apparent’ that it is false. Further guidance on examining identity documents can be found on GOV.UK.
Step 3: Copy and Retain – All employers are required to make clear copies of all documentation in a format that cannot be manually altered and retain the copy securely. This can be done electronically or in hardcopy.
To protect yourself, you should also retain a secure record of the date on which you made the check. Simply writing the date at the top of a document may not be sufficient evidence of this and so further steps should be taken.
The Government recommends that employers copy and retain:
- Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question.
- All other documents: the document in full, including both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).
Businesses must keep copies securely for the duration of an employee’s employment and up to two years afterwards. Once this period has ended the copy must be correctly destroyed.
Conducting an online right to work check
Employers can also conduct an online right to work check in most circumstances, which will provide you with the same statutory excuse against a civil penalty.
You can begin an online check by using the ‘View a job applicant’s right to work details’ on GOV.UK. Not all applicants can be checked via this system, as some individuals will not have an immigration status that can be confirmed online.
If an online check isn’t possible, the right to work checking service sets out what information you will need to conduct a manual check.
The service can, however, check for those workers that have:
- A biometric residence permit;
- A biometric residence card;
- Status issued under the EU settlement scheme;
- Status issued under the points-based immigration system;
- British national overseas (BNO) visa; or
- Frontier workers permit
While the service is helpful, employers must not mandate its use as part of the right to work check, as to do so may result in you breaching the law.
Employers can also use the Employer Checking Service where an individual:
- Cannot show you their documents because of an outstanding appeal, review or application with the Home Office;
- Has an Application Registration Card;
- Has a Certificate of Application that is less than six months old; or
- Is a Commonwealth citizen who started living in the UK before 1988.
Employers must continue to conduct right to work checks for all employees given the recent changes. This includes EEA citizens who are yet to confirm their settled or pre-settled status.
Failure to conduct proper right to work checks could leave your business exposed to an unlimited fine of up to £20,000 for each illegal worker and your business’s details may be published by Immigration Enforcement as a warning to others. In more serious cases, you could even face a five-year jail sentence.