Employers who do not undertake right to work checks risk a 5-year prison sentence and face an unlimited fine if they knew, or had reasonable cause to believe, that an applicant does not have the right to work in the United Kingdom. This includes knowing that the person:
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Does not have permission to enter or remain in the UK,
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Has overstayed their visa,
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Has restrictions on the type of work they can do, or
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Has provided false documents.
To stay compliant with the law, employers must ensure that all applicants and employees have the right to work. Employers must conduct the correct checks and do so properly.
Employers can carry out right to work checks using the Home Office online service, provided the applicant supplies a share code. Alternatively, employers must check the applicant’s original documents. They may also use an identity service provider that offers Identity Document Validation Technology (IDVT).
For British and Irish citizens, employers must check original documents, as they cannot provide a share code. Alternatively, the employer can use an identity service provider.
No checks are needed for existing employees from the EU, EEA or Switzerland if they arrived in the UK before 1 July 2021. Those coming to the UK to work from 1 January 2021 will now need a visa to work and the employer must have a sponsor licence.
Employers must not discriminate against any applicant and should have an equal opportunities policy to ensure compliance with the Equality Act 2010.
It is essential that the employer look at the applicants’ original documents. An employer must ask for a share code as it's not permissible to accept biometric residence cards or allows. The employer must ask the applicant to be present when the documents are verified.
When checking passports, employers must copy any page showing the expiry date, personal details, and any endorsements (e.g., work visas). Copies must be retained, along with a record of the date the check was made. These must be kept for the duration of employment and for two years after the individual stops working for the employer.
Employers must ensure that:
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The documents are originals and unaltered.
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The documents belong to the applicant.
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The photos and dates of birth match the applicant.
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Any discrepancies in names are supported by evidence (e.g., a marriage certificate or decree absolute).
Additionally, employers must:
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Verify that the applicant has the right to work in the UK and note the expiration date of any permission.
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Ensure the applicant is allowed to do the job in question, including checking any restrictions on working hours.
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For student applicants, obtain evidence of their academic course and term dates.
The full list of acceptable documents can be found in the guidance document "Right to Work Checks: An Employer’s Guide" available on GOV.UK.
If an applicant cannot show their documents or online immigration status, employers must contact the Home Office to check their right to work. This includes situations where the applicant:
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Has an ongoing appeal, review, or Home Office application,
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Entered the UK before 1989 and lacks documentary proof of their status, or
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Presents a Certificate of Application or an Application Registration Card.
After the Home Office completes their verification, they will issue a 'Positive Verification Notice' confirming the applicant’s right to work. This document must be kept on file with the employee’s HR records.
Employers should ensure that HR staff are trained and fully aware of these legal obligations to avoid potential legal consequences.
If you need further advice or assistance, please contact the Quest HR Advice Line on 01455 852028.
