How to Check an Applicant's Right to Work

Ensuring that every job applicant has the right to work in the UK is a fundamental responsibility for employers. Failing to conduct compliant checks can lead to severe consequences, including fines, criminal charges, and reputational harm. This blog explains everything employers need to know in relation to carrying out right-to-work checks effectively, complying with UK law, and safeguarding their business.

What Does 'Right to Work' Mean?

The right to work refers to an individual’s legal eligibility to work in the UK. Every employer must verify that their prospective employees have this right before employment begins. British and Irish citizens have an automatic right to work in the UK. Their nationality can be verified by providing a valid passport or Irish passport card. Other official documents such as a birth certificate and National Insurance number can also be accepted.

Those who are not British or Irish must evidence their right to work by providing evidence of their immigration status. This may involve providing an acceptable original document; for instance, a current passport endorsed to show the holder is permitted to stay in the UK and can undertake the work in question. However, as the UK shifts to a digital immigration status, the majority of international workers will evidence their right to work by providing a share code.

Legal Framework and Employer Responsibilities

When hiring overseas workers, it’s important for employers to follow the guidance set out in the Immigration, Asylum and Nationality Act 2006, which is summarised in the Home Office’s right to work guidance. These guidelines help businesses ensure that applicants have the right to work in the UK. By carrying out these checks properly, employers can avoid fines of up to £60,000 per worker, and in rare cases, criminal prosecution. 

As such, businesses must do the following:

• Check applicant documents before employment starts.
• Verify that the documents are valid and belong to the applicant.
• Maintain accurate records of these checks.
• Follow up on visas or permits with expiry dates to monitor a worker’s continued eligibility to work.

By following these steps, you will gain what is known as a statutory excuse, which will protect you from having to pay a fine for an illegal working civil penalty.

How to Check a Job Applicant’s Right to Work

Government guidance on right to work checks offers employers several methods for carrying out compliant document checks.

Manual right to work checks

Manual checks involve reviewing acceptable original documents provided by the employee to confirm they are eligible to work in the UK. Employers must confirm that the documents are genuine, belong to the employee, and meet the requirements set out by the Home Office. It is also important that employers only accept original documents that are specified as acceptable on the Home Office’s right to work checklist. 

Digital right to work checks

Digital checks use electronic systems provided by the Home Office to verify an individual’s right to work. This method is typically used for applicants with digital immigration status or biometric residence permits (those that hold limited or indefinite leave to remain). The system is also used for individuals that hold status under the EU Settlement Scheme.

These online checks require the employee to provide a share code and their date of birth. The employer inputs this information into the Home Office’s online checking service, which verifies the individual’s right to work and generates a record for compliance purposes.

IDVT via the services of an IDSP

For British and Irish nationals, employers can use IDVT (Identity Document Validation Technology) via the services of an IDSP (Identity Service Provider) to complete the digital identity verification (ensuring the employee’s identity document is valid and belongs to the person presenting it). Employers must still ensure that the information provided by the IDVT is consistent with the individual presenting themselves for work.

Home Office Employer Checking Service

The Home Office Employer Checking Service (ECS) is used in situations where other checks cannot be performed, such as when an individual is awaiting the outcome of an immigration application or appeal. This service allows employers to request confirmation of the person’s right to work directly from the Home Office.

It is important to understand that, in some situations, even if one of the above checks has been completed correctly, additional evidence may be required to benefit from a statutory excuse. Examples include providing evidence of a name change, or proving that a Skilled Worker can undertake supplementary employment.

Record Keeping Requirements

Employers are required to keep evidence of right to work checks to demonstrate compliance if audited by the Home Office. This includes copies of the applicant’s original documents or digital verification results, as well as records of key details such as the date the check was carried out. If additional supporting documents, such as a marriage certificate, were used during the process (to evidence a name change, for example), employers should include notes explaining their relevance.

Employers must retain these records for the duration of the individual’s employment and for a further two years after their employment ends. It is also essential to store all documentation securely.

Avoiding Common Mistakes

Mistakes during the right to work checking process can result in a civil penalty being imposed. Common pitfalls include:

• Relying on expired documents: Always confirm that documents are current and valid, and comply with the current UKVI right to work checklist.
• Accepting photocopies or scans of documents: Unless using the Home Office’s online service or IDVT via an IDSP, checks should involve original documents.
• Overlooking name discrepancies: Ensure any name changes are supported by legal documents, such as a marriage certificate.
• Not checking the document/information belongs to the prospective worker: The applicant must be present (either in person or via videocall) during the document check, so you can confirm the photo matches the individual.
• Checking the right to work after employment has started: If someone starts work without right to work checks, you may already be employing them illegally. Always complete checks before their start date.

If you identify a potential error in your right to work check procedure, get in touch with the team at JMW - we can help you navigate this complex issue.

When to Seek Legal Advice

If you encounter situations in which someone’s right to work is ambiguous, you should speak to the team at JMW. There are many reasons why this ambiguity can arise, such as:

• Unclear or incomplete documentation.
• Applicants whose immigration status is under review.
• Concerns about the validity of supporting documents showing right to work.
• Concerns about whether an individual can undertake supplementary employment or a work placement with your organisation.

In these cases, seeking legal advice ensures you meet Home Office requirements while protecting your business from risks. 

How JMW Can Help

With the complexities surrounding right-to-work checks and ongoing changes to regulations, it’s essential to ensure your processes are fully compliant. JMW Solicitors provides clear, expert advice on every aspect of right to work requirements, helping employers protect their business and avoid costly penalties. Contact our team today for confident, practical support tailored to your needs.