The Home Office has published a draft “Code of practice on preventing illegal working” which should be read with the “Employer’s Guide to Right to Work Checks” last updated in June 2021. These changes reflect changes following the end of the Brexit transition period and the grace period on 30 June 2021.
This guidance applies to employers who employ staff under a contract of employment, service, or apprenticeship, whether expressed or implied and whether oral or in writing.
Carrying out the checks in the prescribed manner provides an employer with a statutory excuse (defence) if the employee is later found to be in working in breach of their conditions.
The employer is liable for the civil penalty even if the actual check is performed by a member of staff. An employer will not establish a statutory excuse if the check is performed by a third party, such as a recruitment agency or your professional adviser. In simple terms, the check must be carried out by the employer with who the contract of employment is.
There are 3 types of right to work checks
manual check
online check
Employer Checking Service
Employers cannot generally mandate the type of check that must be carried out.
Manual right to work checks:
The manual right to work check consist of the following three steps:
Obtaining original documents such as passports and Biometric Residence Permits showing the endorsement.
2. Checking the validity of the documents in the presence of the holder.
3. Copying each document and retaining it in a manner that is prescribed, recording the date that the checks were made and retaining it.
Online right to work checks:
The Home Office online right to work checking service allows employers to check whether a person is allowed to work in the United Kingdom and, if so, the nature of any restrictions. 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 can be used for right to work checking purposes.
The Home Office Right to Work Checking Service enables employers to access to up to date real-time information about migrants’ right to work.
It is not possible to conduct an online right to work check-in all circumstances, as not all individuals will have an immigration status that can be checked online.
An employer cannot mandate that an online check must be carried out where the employee wishes to evidence his right to work through a manual check.
There are 3 steps:
1. Accessing the service. The service works on the basis of the individual first viewing their own Home Office right to work record. They may then share this information with the employer by providing a ‘share code’, which, when entered along with the individual’s date of birth, enables access to the information. The employer must access the employer part of the service in order to obtain a statutory excuse.
2. In the presence of the individual (in person or via live video link), you must check that the photograph on the online right to work check is of the individual presenting themselves.
3. Must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. You should store this securely for the duration of employment and for two years afterwards.
Employer Checking Service (ECS)
In most cases, an employer will be able to conduct either a manual document-based or online check, as set out above. In certain circumstances, you will need to contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse. These are when:
the employee presents a Certificate of Application which is less than 6 months old and which indicates that work is permitted
the employee submits an Application Registration Card which states he is permitted to undertake the work
the employee cannot provide his document because of an outstanding appeal, administrative review or application with the Home Office
the employee cannot provide any acceptable documents but submits other information that he is a long-term resident of the UK who arrived in the UK before 1988
A Positive Verification Note will be issued by the Home Office confirming the employee has the right to work which has a date of expiry. A follow-up check will need to be carried prior to this.
