Last updated: 13th September 2021
When it comes to right to work checks, a lot has changed in the last few months: the EU Settlement Scheme ended, the return of physical right to work checks has been delayed until April 2022, and ID checking guidelines changed.
As a result, the right to work check process has altered.
To ensure your organisation’s recruitment and onboarding processes are compliant, we outline the key areas of right to work checks and what you need to do to ensure compliance.
Current COVID-19 Adjustments
Temporary changes to right to work checks were brought in on 30th March 2020, which include:
- Checks being carried out over video calls
- 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
- Employers can use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
On 5th April 2022, this is due to change, and UK employers will need see physical documents when hiring.
In short, this means employers must be in possession of the original documents, and scanned documents will NO LONGER be accepted.
Alternatively, employers can use the Home Office right to work online service (only applicable for certain visa types and statuses; NOT British nationals).
It should be noted that many organisations and governing bodies are campaigning for digital right to work checks. As a result, the return date may change (if not scrapped altogether). It is recommended to keep up to date with Home Office guidance and bookmark our blog for any upcoming changes to right to work checks.
Right To Work Checks On EU Nationals After 30th June 2021
The end of the Brexit grace period means EU nationals starting a new role must show evidence of their immigration status along with their passport. They can also evidence their right to work through the EU Settlement Scheme and provide prospective employers with a share code.
To ensure compliance, employers must:
- Implement policies and procedures and inform staff of all right to work check changes
- Inform EEA and Swiss staff of transitional measures
- Ensure employees are aware of online right to work check facilities
- Do not employ EEA nationals after 1st July 2021 if they:
- Have not applied to the EUSS by the deadline
- Cannot demonstrate alternative immigration status in the UK
- Do not meet the requirements for sponsorship under the points-based immigration system
- Avoid discrimination by applying new policies and procedures that apply to all staff and applicants
- Remind employees to apply for settled status
Right To Work Checklist
Employers should be able to rely on a statutory defence against breaches of duties if:
- Right to work documents checks were done correctly
- The employer can demonstrate they have taken consistent and compliant measures to ensure they are hiring individuals with permission to work in the UK
The Home Office’s three key steps set out your duties as the employer:
Step 1 – Obtain
Until 5th April 2022, employers can still rely on COVID-19 adjusted measures of right to work document checks. Until this date, employers can either:
- Conduct online checks by using an electronic or scanned copy of the relevant documentation (inspected and verified with the individual via a video link)
- Or, be in physical possession of the original documents when carrying out a check. In this instance, the individual must be present physically or virtually (via Zoom, Microsoft Teams, etc), unless using the Home Office’s online checking service
In general, we would advise the following:
- Make a copy of a future employee’s right to work before they start working for you
- Verify the individual’s status before employment is offered, thus giving you time to start the sponsorship process
- Do not leave your right to work process until induction day
- For employees with limited permission to remain and work, you must implement a follow up check before their current period of leave expires
- If you (the employer) can successfully establish a statutory excuse, you must ensure that the candidate presents the original documents in person
List A or List B?
There will be different requirements on the type of documents to be checked and retained. This depends on the individual’s immigration status at the time of the right to work check.
List A is to be used by individuals who have permanent right to work in the UK. List B is for those with time-limited permission to work in the UK (e.g., EEA and EU nationals coming to the UK after 1st January 2021).
An updated document with the lists can be found on the government website here.
What If There Are Problems With The Documents
If the candidate or individual has trouble providing the required proof of right to work, you will need to request a Positive Verification Notice from the Home Office. This applies if the individual:
- Has an application or matter (e.g., an appeal) pending with the Home Office
- Owns an Application Registration Card
- Is a Commonwealth citizen who has been a UK resident since before 1988
- Has a Certificate of Application that is less then 6 months old
Step 2 – Check
Once obtained, documents must be checked by the employer.
This process requires verifying the documents as being genuine and belonging to the person to be employed. Photographs and dates of birth must be checked via a video link or face to face, with the potential employee present. In addition, you should:
- Ensure the name and personal information are consistent across each of the documents provided
- Expiry dates assessed to confirm the validity of any permission
- Check if there are any restrictions on the type of work the candidate can take on
- Confirm that the candidate is permitted to do the job
Step 3 – Retain
To ensure right to work compliance, you must make and retain copies of the documents provided. In addition, we recommend that you do the following:
- Record the date of the check
- Ensure copies are legible and clear
- Do not keep in a format that can be edited easily. PDF is highly recommended
- Retain a copy of the entire document, except for passports. With passports, you must:
- Copy any page with the expiry date, applicant’s personal details (including photograph) and endorsements (e.g., a work visa, biometric residence permit)
- Retain copies for the duration of the individual’s employment, plus two years* after they leave your organisation
- Obtain consent before processing your candidate’s data (this also applies to existing employees) to comply with GDPR data protection laws
*whilst the average retention time is 2 years, some industries may retain copies for longer (up to six years)
Follow Up Right To Work Checks
Repeat right to work checks are required if the individual has presented documents from List B (where a time limitation or restriction is in place). Individuals who can provide documents from List A will not be required to undergo any further document checks during the course of their employment.
It is highly recommended to carry out document checks on List B individuals every 12 months (minimum) or when their visa expires.
The Penalties For Non-Compliance
Right to work checks that are performed incorrectly could lead to the following ramifications:
- Criminal prosecution
- County Court Judgment
- Sponsor Licence suspension or withdrawal
- Fine of up to £20,000 per breach (civil penalty for illegal working)
- Reputational damage, which can lead to decreased financial turnover
- Disqualification of company directors
Employer Checking Service
Employers can use the Employer Checking Service rather than conduct a manual check, if the individual has a biometric residence permit or card, or has pre-settled or settled status under the EU Settlement Scheme.
Employers can only use the system if the individual has provided their permission and obtained a share code (obtained from completing their own application).
More details regarding the Employer Checking Service can be found here.
Do Not Discriminate
It is your responsibility to ensure your right to work check procedure does not discriminate in any shape or form. Therefore, you should implement a background check process that applies to all candidates, regardless of their nationality or ethnicity.
For example, even if it can be assumed that your candidate has the right to work in the UK, you should still perform right to work checks accordingly.
Right To Work Checks – FAQ
Is A Driving Licence Proof Of Right To Work In UK?
A driving licence is not valid proof of right to work in the UK. This is because driving licenses can be obtained easily without a permanent visa.
How Long Does A Right To Work Check Take?
A right to work check can take minutes or significantly longer depending on the individual and the documents provided.
How Long Do I (The Employer) Need To Keep Right To Work Documents?
You can keep these documents for the duration of an employee’s employment, plus 2 to 6 years after the employee has left your organisation. Duration of retention depends on the industry.
Software For Right To Work And Screening Compliance
There is software available that can save time, money, and other resources. One of which is Employment Check Lite, offered by EBC Global.
Employment Check Lite
Employment Check Lite is a secure, fast, and robust platform that offers instant employment checks. It is free to use and has helped all our clients manage, certainly right to work checks, but also the application process. Learn more about Lite here.
Employment Check Pro
There is also Employment Check Pro, which contains 100s of functions which has helped our clients manage their employment background checks.
Pro is designed to help you with specific compliance or referencing background check requirements. Not only is it secure, but its also fast and fully GDPR-compliant. Pro adds value to both the organisation and the candidate. Save time and reduce paperwork; all whilst maintaining compliance. Learn more about Pro here.
It is recommended for employers to follow the practices outlined by the Home Office to ensure best practice.
For updates, news, and important information regarding all types of employment background checks, be sure to bookmark our blog.