As an employer, you are legally required to prevent illegal working. You may fulfil this legal duty by undertaking simple checks on your employees’ right to work in the UK. If you employ an illegal worker and have not carried out the correct right to work check, you may be liable to a civil penalty of up to £20,000 per illegal worker or a criminal conviction carrying a prison sentence of up to five years and an unlimited fine.
The check needs to be performed before the employment starts. You also need to perform a follow-up check on people who have time-limited permission to work in the UK.
To comply with the law, you need to conduct a 3-step check:
- See original documents that are on the Home Office’s list of documents that demonstrate that the person has the right to undertake the work in question;
- Check the validity of the documents you are shown in the presence of the individual; and
- Make copies of the documents you are shown and state on the copies, or in a contemporaneous record, the date on which you checked them. You need to retain the copy documents.
You should carry out the check for all employees to avoid discrimination and to demonstrate a transparent recruitment practice.
Things to do when recruiting
When interviewing, it is a good idea to have a structured approach, such as:
- List what you are looking for from candidates.
- Receive applications – and shortlist possible candidates.
- Check out your shortlist on social media sites (e.g., Facebook) – this can give you an idea of their character and some facts about them, which you may be able to cross-reference with their application.
- Invite candidates to interview and ask them to bring the appropriate identification documents and references.
- Before you interview, have a clear understanding of the job you are recruiting them for and the role you expect them to fulfill.
- Put together interview questions, including questions designed to explore their background such as ‘tell me about yourself’.
If you decide to offer the person a job, it is a good idea to put the offer in writing and, where appropriate, state clearly that this is on the basis of the documentation you have been shown.
The following documents may be used to demonstrate that a person has the right to work in the UK:
- A current Biometric Resident Permit indicating that the holder is permitted to stay in the UK and allowed to do the work in question
- Current Resident Card which may be in a biometric format
- UK Passport, which may have expired.
- Current non-British Passports stamped to show the holder is exempt from control, is allowed to stay indefinitely in the UK, has a ‘right of abode in the UK or has no time limit on their stay in the UK.’
- A full UK, Birth or Adoption Certificates which contains the names of at least one of their parents or adoptive parents + an official document with a National Insurance number.
- A birth or adoption birth certificate issued in the Channel Islands, Isle of Man or Ireland and an official document with a National Insurance number.
- Certificates of Registration or Nationalisation as a British Citizen + an official document with a National Insurance number
- European Economic Area (EEA) or Swiss Passport or National Identity documents (excluding Croatians) In the case of Croatians there is separate guidance available.[1]
- EEA Registration or document certifying permanent residence issued by the Home Office – this may be a stamp in their passport or a blue residence card. See Annex A.
- A Swiss pink card is also acceptable[2]
- Certificates of Application – see immigration status documents below
The list of documents to be checked (above) is accurate at the time of writing but may change, so it is important to check the current list on the Home Office website at: www.gov.uk/government/publications/right-to-work-checks-employers-guide.’
Essentially, for British citizens, the key documents are a UK passport or the combination of a full UK birth or adoption certificate together with documented evidence of a national insurance number. In the case of migrants most will demonstrate their right to work through a current Biometric Residence Permit or an endorsement in their current passport.
It should be noted that the following documents do not demonstrate a right to work:
- A disclosure and barring service check;
- A National Insurance number on its own;
- An ILR (Indefinite Leave to Remain) vignette in a passport that has expired.
Biometric Residence Permits (BRPs)
These are documents that are issued in the UK to migrants who are who are subject to immigration control from outside the EU and who are granted permission to enter or remain in the UK for more than six months.
A BRP will show:
- The person’s photograph
- Their name
- How long they are allowed to stay in the UK
- The place and date the permit was issued
- The immigration category of the person (e.g., student)
- Details about the person’s permission to work
- The person’s signature
- The person’s gender
- The person’s date and place of birth
- Their nationality
- Permits may also contain the person’s National Insurance Number
The cards also have a biometric chip which can be authenticated using Near Field Communication (NFC) functionality on an Android or Smart phone. Each chip contains biometric identifiers (fingerprints, digital photo) which make them difficult to forge. See also guidance on recognising fraudulent documents.[3]
It is important to look carefully at the permit to check whether it is authentic and also to check both the type of permit and the remarks section, which will set out any work conditions.
The BRP will state whether permanent residence has been granted, whether it is limited to a specific period of time or whether the holder is subject to any restrictions on their right to work, such as the hours per week they are permitted to work or for whom they are permitted to work. If the employee is subject to a limited period to stay in the UK, the employer is required to repeat the right to work check when the expiry date is reached, to ensure that the person is still legally allowed to stay and work, and to retain the excuse against a civil penalty liability.
Newly arrived migrants have to collect their BPR from a specified Post Office once they arrive in the UK within 10 days of arrival or before expiry of their short stay permit (a vignette in their passport). The vignette will expire 30 days after issue and if the employment has started on the basis of this vignette, the check must be repeated using the BRP for the statutory excuse to continue. If you employ someone on the basis of the vignette and the employee is unable to present you with a BRP when the vignette time expires, you are not required to immediately terminate the employment if you believe that the employee continues to have the right to work. However, once the 30-day vignette has expired, you will not be able to retain the statutory excuse. You will also not know when your employee’s permission to work will time expire. It is therefore important for you to repeat the check using the BRP.
Residence Card (Biometric Format)
Biometric residence cards issued to non-EEA family members closely resemble BRPs and contain the holder’s digital image, name and signature, date and place of birth, nationality, gender, expiry date of card, place of issue, type of residence card (category of residence) and a unique number. They also have a biometric chip.
UK Passports
British Citizens can demonstrate their right to work with their UK passport. This can be done either with a current passport or an old style one that may no longer be valid for travel.
You should check the photograph shown on the passport is consistent with the person and, if in any doubt, ask for further evidence.
Non-British Passports
If someone has a non-British passport endorsed with to show that the holder is exempt from immigration control, allowed to stay indefinitely in the UK, has no time limit on their stay in the UK or has a right of abode’ it is important to check that the passport is still current as the ‘right to work’ will expire with the passport.
UK Birth and Adoption Certificates
British citizens can also use their full UK birth or adoption certificate as evidence of their right to work. These certificates will show the name of at least one of their parents or adoptive parents.
If a certificate is used as evidence, you will also need to see an official document from a Government Department or a previous employer showing their name and National Insurance number, such as a tax document.
Short UK birth certificates (which do not have details of either of the holder’s parents) and national insurance numbers on their own are not acceptable documents for the purpose of a right to work check.
Certificates of Registration or Naturalisation as a British Citizen
A certificate of registration or naturalisation as a British citizen can be used provided it is accompanied by an official document giving the person’s permanent National Insurance number and their name.
A certificate of registration or naturalisation is issued to people who have been naturalised as British citizens which allows them to apply for a UK passport.
Channel Islands, Isle of Man or Ireland
A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland (which together with the UK forms ‘The Common Travel Area’) together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer can also be used to demonstrate the right to work.
EEA (European Economic Area) Nationals
All nationals from EEA countries and Switzerland, with the exception of Croatia[4], are free to live and work in the UK. They may demonstrate their right to work through their EEA (or Swiss) passport or national identity document, whether or not it has expired.
The E-passport, introduced in the 1990s, contains a “chip inside” logo indicated on the front cover of the document and an electronic chip which contains the facial image and biographical data of the holder.
Nationals from the EEA may also demonstrate their right to work through a Registration Certificate or Document Certifying Permanent Residence issued by the Home Office. This may be in the form of a residence sticker in their passport or a separate blue residence card bearing a photograph and personal details of the holder, and which will also bear the same residence vignette. Swiss nationals receive a similar pink card.
Permanent Residence Certificate which is placed in passport.
Registration Certificate as a standalone document (not in a passport)
Registration Certificate for a Swiss national as a standalone document (not in a passport)
Non-EEA family members of EEA (and Swiss) nationals
Family members of EEA (and Swiss) nationals who come from outside the EEA should have Biometric Residence Cards which clearly indicate whether they are permitted to work. Not all EEA family members can work without obtaining a Residence Card and asylum claimants need an Application Registration Card – so it is advisable to use the free Employers Checking Service in these cases.
Prior to 6 April 2015, Residence Cards and Permanent Residence Cards as endorsements were issued. These may be in the holder’s passport where they have been authenticated by a circular embossing stamp or stand-alone documents.
Since 2015, applicants may be issued with a Certificate of Application which clearly states that the individual has a right to work in the UK whilst their application for a Residence Card or Derivative Residence Card is being considered. Such certificates are only valid for 6 months from the date of issue and should not be confused with letters acknowledging their application for a certificate or card.
Croatian nationals
UK has applied transitional restrictions on the access of Croatians to the labour market. These are set out in the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013. Under these Regulations, a Croatian national who wishes to work in the UK and who is subject to the worker authorisation requirement will need to obtain an accession worker authorisation document (permission to work) before starting any employment.
An example of a Positive Verification Notice may be found here.
A Certificate of Application that permits work.
Asylum Claimants
Asylum claimants are issued with an Application Registration Card (ARC) to acknowledge that they have claimed asylum and since July 2017, the new ARC closely resembles the BRP. It includes new security features, a biometric facial image and an expiry date. Whilst the earlier version of the ARC is no longer being issued, the cards already in circulation will continue to be valid until 2019. Usually, asylum claimants are not permitted to work. However, some may be granted permission to work by the Home Office and, if so, the ARC will state that work is permitted.
The ARC will state that employment is only permitted in a job on the Shortage Occupation List, which includes some chefs although not in the fast food or takeaway sectors.
When the ARC indicates that work is permitted, the business must still verify that the work is permitted through the Employer Checking Service (see below). If a Positive Verification Notice is issued, the business must re- check its validity after six months from the date of the notice.
An example of a Positive Verification Notice may be found here.
Entry Clearances and Visas
Prior to the introduction of the Biometric Residence Permit, non-EEA nationals granted permission to come to or remain in the UK, were issued with a UK government endorsement in their national passport. This might have placed restrictions on the type of work they were permitted to do, and/or the hours they could work, depending on the conditions attached to their immigration permission. This may be in the form of an entry clearance (visa) granted in their country of application.
These endorsements granting permission to come to or remain in the UK demonstrate a right to work while they remain valid.
Entry Clearance Vignette as contained in a passport
An Entry Clearance sticker that is also a Short Validity Vignette indicating that it is valid for 30 days from issue to allow the individual to come to the UK and collect their BRP.
Students
Not all international students have the right to work while they are studying, and they may be restricted in the number of hours they can work. The right to work and the hours allowed will be specified on their BRP or passport sticker. In respect of Tier 4 students who are permitted to work, an employer is also required to retain a note of the term and vacation periods for their course of study.
Immigration Status Documents (ISD)
ISDs used to be issued to migrants granted discretionary leave, humanitarian protection or refugee status but have now been replaced with Biometric Residence Permits. However, some may still in circulation. If the ISD is current and states that the holder has indefinite leave to stay in the UK or no time limit on their stay in the UK and is presented with an official document giving the person’s National Insurance number and name issued by a Government agency or a previous employer, the right to work does not have to be checked again during the employment. If the ISD is current and contains a photograph of the holder and states that that the holder may stay in the UK and is allowed to do the type of work in question and is presented with an official document giving the person’s National Insurance number and name issued by a government agency or a previous employer, it will demonstrate a right to work. However, the check must be repeated when the permission comes to an end.
An Immigration Status Document indicating humanitarian protection.
Employer Checking Service
The Home Office operates the Employer Checking Service which enables employers to verify the right of potential employees to work. This can be used if:
- an employee or prospective employee has permission to work while their status is the subject of an application which had been made before their previous permission to be in the UK came to an end or have an outstanding appeal or administrative review against a decision to refuse such an application.
- an employee or prospective employee presents an Application Registration Card that permits the employment in question; or
- an employee or prospective employee presents you a Certificate of Application which is less than six months old.
By applying to the Service, the business can obtain a ‘Positive Verification Notice’ verifying the individual’s right to work. This can be done electronically at https://www.gov.uk/employee-immigration-employment-status and the Service generally responds within five working days. You will need to obtain the individual’s permission to make the check.
A Positive Verification Notice lasts for six months from the date of the Notice. If a Negative Verification Notice is issued it means the person cannot be employed and the business may be liable for a penalty if it employs them. Continuing to employ them may also be a criminal offence.
On-Line Checker
The Home Office also has an on-line tool to help employers check whether someone is allowed to work.
You can find this at https://www.gov.uk/legal-right-work-uk
[1] Since 1 July 2013, as EU nationals, Croatians have been able to move and reside freely in any EEA Member State. However, the UK has applied transitional restrictions on their access to the labour market. This means that a Croatian national can only work in the UK if they hold a valid accession worker authorisation document (such as a purple registration certificate) or if they are exempt from work authorization. See guidance at: https://www.gov.uk/government/publications/illegal-working-guidance-for-employers-croatian-nationals
[3] https://www.gov.uk/government/publications/recognising-fraudulent-identity-documents