All employers in the UK have a responsibility to prevent illegal working. It is mandatory that employers must check prospective employee’s status to ensure they have the right to work in the UK before they start work. This obligation can be discharged by carrying out a simple right to work check. Proof of a properly completed right to work check reduces the risk of any action against organisations by Home Office personnel. The name of any employer who is fined under the civil penalty scheme is published on the Home Office website.
From 6 April 2022, you must carry out a check for individuals holding a BRC, BRP or FWP visa using the Home Office’s online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.
You must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals.
You do not need to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.
If you carry out a manual check on a right to work document (e.g. a British passport), ensure that you record the date the right to work check was carried out. Record on the copy documents ‘the date this right to work check was carried out is [insert date]‘ to ensure that you capture the correct date.
Care should be taken if outsourcing right to work checks to third-party screening providers
The ultimate responsibility for performing the right to work check remains with you as the employer. Although it may be possible to force the third-party screening provider to pay any civil penalty if there is an indemnity in the contract, this will not protect you from the reputational damage of being ‘named and shamed’ on the Home Office website or any adverse coverage in the press. If you are using a 3rd party seek out testimonials from their other clients
If you are carrying out your own check you must use your best endeavours to determine if you are presented with legitimate documentation. 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?
- Is there any unusual font or formatting?
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. Remember students can only work full time during vacation periods and normally are limited to no more than 20 hours work per week Make sure those supervising students are aware of these rules.
Don’t leave carrying out follow-up checks until the date that the employee’s permission expires.
Implement a system to ensure that reminders are generated automatically and sent to the employee in the weeks before their permission expires.
The employee reminders should state that their permission will shortly expire and they need to take steps to extend their leave and make an application to the Home Office before their existing permission expires. State that one potential outcome could be their dismissal if they cannot demonstrate that they have taken steps to extend their leave or have made some other application to the Home Office.
The main reason why you would need to contact the Employer Checking Service (ECS) is because the employee or prospective employee has made an application to renew their visa permission, but they have not yet received a decision from the Home Office.
You would also need to contact the ECS because they:
- have an outstanding appeal or review with the Home Office
- arrived 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
Indefinite leave to remain must be in a valid passport (i.e. the passport must not have expired)
If an employee or prospective employee provides an expired overseas passport with an Indefinite Leave to Remain (ILR) stamp, then this is not a valid right to work document.
The employee or prospective employee will need to make an application to transfer their ILR to a Biometric Residence Permit. Once they have made their application then you can use the Employer Checking Service (above) to check their status.
Indefinite leave to remain must be in a valid passport
Any name changes or different names appearing on right to work documents should be acknowledged officially and evidenced by supporting documents.
You should request official documents to support any name changes or difference in names across right to work documents.
For example:
- Deed poll
- Marriage/civil partnership certificate
- Divorce decree absolute