Right to Work in the UK Checks

Naturally, since Brexit, our work has focused heavily on helping organisations and HR experts to retain or hire talent from abroad. We work with businesses from all sectors, from start-ups to multinationals, as they all recognise the value that foreign talent can offer.

It is particularly important that all employers verify their employees’ right to work in the UK. Failing to do this could lead to a civil or criminal offence, sanctions and awfully expensive penalties, not to mention harm the employer’s reputation. These checks also provide organisations with a statutory excuse against liability for a civil penalty.

From 1 October 2022, employers must carry out one of the prescribed checks as set out in the Right to work checks: An Employer's Guide before employment commences:

1. Manual right to work check; 
2. Right to work check using IDVT via the services of an identity service provider (IDSP); or
3. Home Office online right to work check. 

Right to work documents accepted for manual check

The list of acceptable documents you must rely on depends on whether the employee has a permanent (list A documents)or temporary (list B documents) right to work in the UK.

 This also determines if you can carry out a one-off check or if you need to schedule a follow-up check depending on the expiry of their current right to work.

• List A documents – For those with a permanent right to work in the UK. You need only conduct one check before employment begins, as this will grant you a continuous statutory excuse.
• List B documents – For those with a temporary right to work in the UK. You will need to conduct follow up checks the same way you carried out the original check as you will only have a time-limited statutory excuse.

If you discover that false documents have been provided, you must report this to the Home Office without delay.

You can find the ‘Right to Work Checklist’ on the Gov.uk website. Following this checklist will ensure you correctly carry out all the required steps. You may also use the online interactive tool ‘Check if someone can work in the UK’, which will take you through the process by asking you a series of questions.

Note that from 6 April 2022, biometric residence cardholders can only evidence their right to work online. Employers can no longer accept physical biometric residence cards for the right to work check from that date.

A temporary Covid-19 policy was put in place with a deadline extended now to 30 September 2022. Until this date, employers can rely on a scan or photo of ID and a video call verification of these.

Checks using the Home Office online checking service do not require you to check physical documents and can be carried out by video call, as right to work information is provided in real time direct from Home Office systems. 

We will explain some details of this policy further down this article.

Right to work documents for online checks

The employee will need to present a share code which is valid for 30 days only. You will also need the date of birth to view the details.

You must check that the photograph on the system matches the prospective employee.

You will have the option of printing the profile page or saving it as a PDF or HTML file, which must be done and stored for two years after the termination of the employment.
If you need to carry out a follow-up check, the system will tell you as the check will have an expiry date.

To avoid doubt, this system is accessible for employers on the ‘View a job applicant’s right to work details’ page on GOV.UK. No other online portal relating to immigration status may be used.

This online check is commonly used for employees with status or Certificate of Application under the EU Settlement Scheme. It would be the employee’s choice to be checked this way. The share code can be given to you by the employee, or they may choose to send this via the service where you will receive an email from the Home Office (right.to.work.service@notifications.service.gov.uk).

If you need to carry out a follow-up check, the system will tell you as the check will have an expiry date.

PVN - Employer checking service

On those occasions where you may encounter someone with unclear immigration status or lack of documents. You will then need to contact the Home Office via the Employer Checking Service to find out if you will receive a Positive Verification Notice (PVN) regarding the employee’s right to work.

This notice will only be valid for a limited time, and you will need to reapply unless the employee has a new status and you receive confirmation via the Online Service that we have discussed in the previous slide.

Right to Work COVID-19 Temporary policy

As previously mentioned, some temporary coronavirus (COVID-19) concessions were introduced during the pandemic to add flexibility.

A few adjustments to highlight are:

• Recently expired passports can be accepted - employment checking service PVN needed.
• Checks can currently be carried out via video calls (ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”).
• Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app rather than sending originals.

You can read guidance about the adjusted process also in the Gov website:

Once again, if you are unsure about the quality of documents or unclear about the documents to be checked, you can always go back to the Employer Checking Service and obtain the Positive Verification Notice (PVN).

Always pay attention to any restrictions on the hours or type of work a person can do.

Checks for EU Citizens with pre-settled/settled status

When it comes to European citizens and their family members who have been granted Pre-Settled or Settled Status since Brexit, there is no requirement for a retrospective check to be undertaken on such person who entered employment up to and including 30 June 2021.

However, if a retrospective check is made and an employee is found to no longer have valid status, compliance will be needed.

You may not need to terminate employment when you identify an EEA employee without status. You can advise them to apply to the EU Settlement Scheme within 28 days, otherwise, you would have to cease employment. After their application, you can go back to the Employer Checking Service to obtain a Positive Verification Notice.

Right to work checks for international recruitment

If an employee’s visa is expiring and they cannot extend independently, you may need to offer Sponsorship to retain them. To recruit internationally, an employer will need to hold a sponsor licence and issue a Certificate of Sponsorship.

This sponsorship can be a Skilled Worker Visa, that allows employers to recruit people to work in the UK in a specific job; or an Intra-Company Visa, that allows established workers who are being transferred by the overseas business they work for to do a skilled role with a linked business in the UK.

The immigration rules continue to change rapidly. If you need additional guidance, please contact us for further information and to see how our team of lawyers can help your case.