Right to work: Everything you need to know

As an employer, you need to confirm that anyone you wish to employ is eligible to work in the UK before they can start. If you get this wrong and fail to ensure someone has the right to work in the UK, it could result in you receiving a penalty of up to £20,000 for each worker or five years in prison if you are found guilty of employing someone you knew, or had reasonable cause to believe, did not have the right to work in the UK.

This could include:

if you had reason to believe that someone did not have permissions to enter or remain in the UK
if their leave had expired
if they were not allowed to do certain types of work
if their papers were incorrect or false

You have three options in relation to conducting right to work checks:

Since 6 April 2022, foreign nationals who have a biometric work or residence permit have only been able to be checked online. Manual right to work in UK checks are no longer permitted for these foreign nationals. You do not have to do a retrospective check if a manual check was completed before 5 April 2022.

You can carry out the online check and use the government’s free online checking service on right-to-work.gov.uk. You will need the employee’s date of birth and a share code. This includes workers from the EU, European Economic Area or Switzerland, who must obtain evidence of lawful immigration status – this has applied since July 2021 when post-Brexit immigration rules came into effect.

These employees will have biometric proof of their right to work or a frontier work permit, as well as a UK Visa and Immigration Account, which they should keep up to date. As part of this, they are able to scan their identity documents into the government database using their phone. If there are any time limits on their right to work then of course you will need to diarise this so that you can carry out further timely checks to ensure that you do not employ them beyond that date if the time period has not been extended.

During the Covid-19 pandemic, temporary changes meant that employers could ask for documents digitally and check them on a video call instead of in person. However, from 1 October 2022, these adjusted checks will no longer be accepted. Employers must use a Digital Identity Service Provider (IDSP) that using Identity Validation Technology (IDVT) to validate an applicant’s proof of right to work or undertake such checks in person.

Employers will be able to use certified IDSPs to complete digital right to work checks for British and Irish citizens, as long as they have a valid passport. This is an alternative to manual checks. IDSPs will complete these digital right to work checks on behalf of employers. You will need to submit images of personal documents rather than the original documents but using IDVT instead of a scan or copy.

Any manual right to work checks of original documents for British and Irish citizens will need to be done in person. A manual check will require one document from each of the Home Office’s lists of acceptable documents. This includes: passports, immigration status documents, birth or adoption certificates and certificates of naturalisation.

When checking an applicant’s right to work in the UK manually, employers must check that documents are genuine and that the person presenting them is the prospective or existing employee. This includes checking photographs and dates are consistent across documents and that they match the person’s appearance.

When undertaking a manual check, you must also consider expiry dates and whether there may be any reasons for differences in names – such as marriage or divorce. Any evidence that the documents have been tampered with should raise alarm bells. You should make a copy of passports and other documents and keep these on file. You should also retain records of when the check was made.

The government has issued a new code of practice in relation to avoiding discrimination when conducting right to work checks, which you should review. The code states the importance of treating all candidates fairly and having clear procedures in place for the recruitment and selection of workers based on equal and fair treatment. Remember that falling foul of discrimination laws could results in claims being made against your organisation so it is important that you proceed with caution throughout the entire process.