How to Check a Job Applicant’s Right to Work in the UK

As an employer in the UK, you are legally required to check the right to work of all prospective employees. This requirement does not just apply to candidates from outside the UK who will be coming to work here on a work visa; it applies to everyone you employ. In this article, we will explain why right-to-work checks are required and the 3 methods of carrying out UK right-to-work checks. 

Why are right-to-work checks required in the UK?

The UK government says that it requires the right-to-work checks as a way of reducing the levels of illegal work in the country due to the harm caused to both the social fabric of the UK and the wider economy. As they explain, “it [illegal working] undercuts British businesses and their workers that stay within the law and exploits migrant workers”. 

The government also point to evidence that some illegally employed workers are paid less than the minimum wage, do not pay tax, and undertake dangerous work that breaches the UK’s health and safety regulations. 

The Immigration, Asylum and Nationality Act 2006

Sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), which came into force on the 29^th February 2008, brought in new rules to:

1. Make it more difficult for those with no right to work in the UK to unlawfully gain or keep employment
2. Make it easier for employers in the UK to make sure they only employ people who are legally allowed to work and
3. Strengthen the government’s control over illegal work by making it easier for them to take action against employers who use illegal workers.

Employees have a legal duty under the 2006 Act to prevent illegal working by conducting document checks to confirm that all prospective and existing employees have the right to work in the UK. Any employer who does not carry out the necessary right-to-work checks or employs a person who does not have the right-to-work risks receiving a fine of up to £10,000 for each illegal worker. In some cases, employers may face criminal prosecution for breaching the 2006 Act.

What is an illegal worker?

It is important not to make assumptions about who may or may not be an illegal worker. Rather, you should check the right to work of all employees regardless of their background. The government classifies an illegal worker as someone who:

1. Is subject to immigration control, and
2. Is aged over 16, and
3. Does not have permission to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK is invalid or has been curtailed, revoked, or cancelled. It may also be the case that the individual is subject to a condition preventing them from accepting the employment.

How do I do a right-to-work check in the UK?

There are 3 ways that you can complete a right-to-work check in the UK: 1) Using the government’s online right-to-work check service, 2) checking original documents, and 3) using a third-party identity check service provider. 

Carrying out an online right-to-work check service

If the candidate has a 9-digit ‘share code’, you can enter this into the government’s online check service webpage to check their right to work in the UK. This online check will tell you the types of work that they are allowed to do and how long they can work in the UK (e.g. if they have a visa to be in the UK). It is also important to check that the photograph shown online resembles the candidate. If you are satisfied that the candidate has the right to work in the UK, you can print off or save their online profile page, which can then be kept as evidence.

Checking original documents

If your candidate does not have a share code, then you can carry out a manual right-to-work check using their original documents (e.g. passport). The documents you need to request from the candidate will depend on whether they are a British or Irish citizen or from another country. If your candidate is a British citizen, you will only need to check and keep a clear copy of their current passport. Alternatively, you can check their birth or adoption certificate or certificate of registration or naturalisation as a British citizen.

If the individual has pre-settled or settled status under the EU settlement scheme (EUSS), you can ask them to prove their immigration status online. Other acceptable documents include a passport showing the right to reside indefinitely in the UK, an immigration status document, a biometric residence permit (BRP), or an application registration card. 

The government provides 3 lists of the acceptable documents which can be used when carrying out a manual right-to-work check:

• List A shows all acceptable documents to establish a continuous statutory excuse – follow-up right-to-work checks will not be necessary.
• List B Group 1 shows all acceptable documents that establish a continuous statutory excuse until the expiration date of permission to be in the UK. Follow-up right-to-work checks will be necessary.
• List B Group 2 shows all acceptable documents which establish a continuous statutory excuse for a period of 6 months only – follow-up right-to-work checks will be necessary.

A “statutory excuse” simply means that because you have completed the necessary right-to-work checks, even if the candidate is later discovered to be an illegal worker, you will not face a civil penalty because you have done what you are supposed to do. In other words, it is a defence against a civil penalty. 

You must carry out the right-to-work check in the presence of the candidate (this can also be via video call if necessary). What matters is that you must have the original documents with you when you carry out the check. When checking the documents, you will need to ensure:

• The document belongs to the candidate
• The documents are genuine
• The candidate has the permission necessary to do the job they are applying for
• The photo and personal details (e.g. date of birth and name) match across all documents
• The photo looks like the candidate
• The document has not been altered or tampered with 
• The right to work has not expired, and
• There is nothing prohibiting the candidate from doing the job 

If there is a discrepancy between the candidate’s name and that on the document, you may need to ask them for their marriage certificate, deed poll, divorce final order (or decree absolute). 

Which ever documents you check, you must keep a clear copy for your records for at least 2 years beyond the date they leave your employment. The documents should be stored in a secure way that prevents them from being altered. For this reason, it is advisable to keep a hard copy or a digital scanned copy in a locked cabinet. 

You will need to carry out follow-up right-to-work checks to see if a candidate has a time-limited right to work in the UK (e.g. if they have a work visa). You can check the immigration status of your employee using the UK Visas and Immigration’s “Employer Checking Service”.

Using an Identity Service Provider (IDSP)

The third method of checking the right to work in the UK is by using an approved third-party identity service provider (IDSP). This method can only be used by UK and Irish citizens who hold a current valid passport.

IDSPs have permission from the government to carry out identity checks for employers using Identity Document Validation Technology (IDVT). To use an IDSP to carry out identity checks on your behalf, you will first need to select a provider. A list of IDSPs can be found on the government website. 

Your chosen IDSP will carry out the necessary checks, however, you will still need to ensure that the photo and personal details provided by the provider match those of the candidate in person or through a video call. Because the checks undertaken by IDSPs provide a continuous statutory excuse, there is no requirement to do follow-up checks.

Final words

The UK government is determined to stamp out illegal work, and this has been the case for many years now. It is essential that you embed robust processes and systems within your organisation that ensure right-to-work checks (and follow-up checks) are carried out as a matter of routine. You must also keep copies of the documents safe and secure for the required amount of time. By taking the time to get your right-to-work processes right from the outside, you can avoid any inconvenience, cost, and reputational damage of being accused of hiring illegal workers.