Right to work checks: Ten top tips

So why do so many employers get it wrong? Here are our top tips to help you carry out right to work checks correctly.

All employers in the UK have a responsibility to prevent illegal working. They can do this by carrying out simple right to work checks before an individual is employed to ensure that they are not disqualified from carrying out the work in question by reason of their immigration status. A properly completed right to work check will give the employer a ‘statutory excuse’ and, in such cases, no further action is usually taken by the Home Office.

The most recent Home Office data reveals that there were 449 civil penalties for illegal working issued in the quarter 1 October 2018 to 31 December 2018. A total of 639 illegal workers were discovered by the Home Office and the gross figure for civil penalties in that quarter amounted to £7,775,000. Whilst this figure is likely to be reduced once objections and/or appeals are processed, it will still be a significant sum.

If the checks are so simple then why are hundreds of employers facing a civil penalty for employing illegal workers? In fact, some employers may also be at risk of criminal sanctions if they knew, or had reasonable cause to believe, that the individual found to be working illegally did not have a right to work in the UK. A custodial sentence of up to five years can be imposed.

So why do so many employers get it wrong? Here are our top tips to help you carry out right to work checks correctly.

1. You must undertake right to work checks BEFORE the employee commences employment

If a prospective employee says that they will provide the documents later then you must delay their start date until they provide the documents for checking. As soon as the employee commences working you have lost your statutory excuse if it transpires that they are working illegally.

2. Never assume that someone has the right to work in the UK

Carry out right to work checks on every prospective employee regardless of actual or perceived nationality.

3. Only accept a document from the Home Office prescribed list

Check the document provided against the check-list and do not accept the document if it does not appear on the list. There are documents that have previously appeared on the list that are no longer valid right to work documents (e.g. a letter from the Home Office).

4. You must date the documents once they have been checked

You must date the documents once they have been checked and specify that this is the date that the Right To Work check was carried out. It is not sufficient to just write the date on the photocopy. The date must clearly state that the actual date when the RTW document was checked.

The Home Office suggests the following wording ‘the date on which this right to work check was made: [insert date]’.

5. How can you tell if a document is legitimate?

Use common sense. The test is whether a reasonable person would be able to identify that the document was a forgery. You do not have to be an expert.

Pay particular attention to: 

  • The quality of the document – is it in good condition? Is the print crisp and clear?
  • Does any photograph match the person in front of you?
  • Have any dates expired and are the dates consistent across all documents? (Pay particular attention to date of birth and place of birth)
  • Is there any evidence of tampering or wear? (Are the security seals misaligned? Are the photos flush?)

6. When to carry out an online check

You can only carry out an online check in certain circumstances (where a migrant holds a biometric residence permit; a biometric residence card or status issued under the EU Settlement Scheme). The employee must first view their own Home Office right to work record and then share this information with you if they wish by providing you with a ‘share code’ which (along with the individual’s date of birth), enables you to access the information.

You must access the employer part of the service ‘View a job applicant’s right to work details’ on gov.uk. Then check that any photograph on the online right to work check is of the individual presenting themselves for work. Then retain a clear copy of the response provided by the online right to work check and this will provide you with a ‘statutory excuse’.

7. Students

It is not sufficient to just check a student’s right to work documents. You also need to obtain and retain the student’s vacation and term times and keep them on file. This will inform you when a student can work full time as this is only permitted in vacation periods. You risk receiving a civil penalty if you allow a student to work over their permitted hours during term time.  

Be careful during busy periods. It is very easy to ask a willing employee to work overtime during busy periods (e.g. Christmas) and forget that a student is only permitted to work 20 hours during term time. Ensure that all managers who can authorise overtime are aware which employees are students and have restrictions on the number of hours they are permitted to work during term time.

8. Follow up checks

You must carry out follow up checks for any migrant who has limited leave to remain (where there is an expiry date on their permission to work in the UK).

Digitise your systems to ensure that reminders are generated automatically. We suggest reminders at 8 weeks, 4 weeks and 1 week before the permission is due to expire. The employee should be notified that they will be dismissed if they cannot demonstrate that they have taken steps to extend their leave or have made some other application to the Home Office. Stress how serious this is to the employee and that any application to extend their leave in the UK MUST be made before the expiry of their existing permission.

9. Checking EU nationals

At the moment you can continue to employ EU nationals and a valid EU passport remains acceptable evidence of right to work. What happens next depends on whether a Brexit deal is agreed or not. For more detail on Employing EU nationals in the approach to Brexit read our detailed guide.

Remind and encourage EU nationals currently in your employment to apply for settled or pre-settled status now and consider how you can assist and support current EU staff with their applications (e.g. providing information, training or legal advice). This is especially important if you have an EU national who is working in a critical role in your organisation

10. Many employers outsource their right to work checks to be carried out along with other pre-employment checks

However, the employer remains liable for carrying out the checks and it will be the employer’s responsibility if the third party screening provider gets the right to work check wrong.

Carry out a regular audit of right to work checks carried out by the third party screening provider to ensure that they are compliant. 

Mandy Higgins is a Partner in the Employment, Pensions and Immigration team, based in Liverpool, and has extensive experience of advising both public and private sector clients in relation to business immigration. If you have any questions, concerns or training needs, please do not hesitate to contact Mandy on 0151 243 9894 or mandy.higgins@weightmans.com, or speak to your usual Weightmans advisor.

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