Eligibility to Work in the UK and Right to Work Checklist

Who is eligible to work in the UK?

A person will be able to work in the UK if they are:

• British citizen (this may have been from birth or acquired later in life through naturalisation)
• An EU national with Pre-Settled Status or Settled Status
• A person with Indefinite Leave to Remain (ILR) – those with ILR are not subject to any work limitations
• A person with a valid visa that allows them to work in the UK. This may include a Skilled Worker visa, Global Talent visa, Temporary Worker visa, Student Visa, dependant of a visa holder or a range of other visa types. The conditions attached to each visa will determine if there are any restrictions, including the type of role if the person can change roles and the number of hours that can be worked.

Certain individuals cannot work in the UK, including those on a visit visa and those without valid immigration status.

What is a right to work check?

The goal of the right to work check process is to prevent working by individuals who are not legally permitted to undertake employment in the UK. The Home Office take the view that illegal working leads to vulnerable individuals being exploited and unscrupulous business behaviour, which is an unfair disadvantage to employers who act legally and honestly. Right to work checks must be completed regardless of the origin of the employee because assumptions about a person’s nationality and, hence, their legal right to work can be incorrect.

Right to work checklist

To carry out a manual right to work check, you will need to follow 3 main steps:

Step 1: Obtain right to work documents

Step 2: Check right to work document

Step 3: Copy and retain a copy of right to work documents

Step 1: Obtain right to work documents

The first step in completing a manual right to work check is to ask for certain documents from your prospective employee. It is important to ask for the original documents, not copies. The documents acceptable to the Home Office are defined in three lists, List A and List B – Group 1 and Group 2.

List A

List A includes documents for people who have a permanent right to work in the UK. As such, once you have completed the right to work check process before employing the individual (i.e. the pre-employment check), you will not need to complete any follow-up right to work checks. You will have a ‘continuous statutory excuse’ while the employee is in your employment.

List B

List B is for those who have a temporary right to work. This is further split into Group 1 and Group 2 – these groups correspond to when you need to complete follow up right to work checks after the initial pre-employment check.

• List B Group 1 documents provide a time-limited statutory excuse. This statutory excuse runs out when the employee’s right to work expires (i.e. when their work visa expires). Employers will need to ensure they carry out a further right to work check just before the employee’s permission expires.
• List B Group 2 documents also provide a time-limited excuse, but for a fixed period of 6 months on the Positive Verification Notice. Employers will need to ensure they carry out a further right to work check just before the 6-month statutory excuse expires.

Step 2: Check the right to work documents

Once you have obtained the documents, you will then need to check that the person has the right to work, and that:

• There is no evidence that the documents are fake or have been tampered with
• The names on the documents are correct and consistent across all documents (bearing in mind it the person has changed their name through marriage or divorce)
• That the photos match and are consistent across all documents provided
• any dates, including the date of birth, are correct and are consistent across all documents provided
• Whether there are any work restrictions (often stated on biometric residence permits)

Important Note: COVID-19 checking process ending 5^th April 2022

During the COVID-19 pandemic, changes were made to how right to work documents are checked. This allowed documents to be sent in digital form and to be checked on a video conference call with the prospective employee. This temporary process will end on 5^th April 2022, after which employers must revert back to the full document checking process.

Step 3: Copy and retain a copy of right to work document

Once you are satisfied, the documents are valid, and the person does have the legal right to work in the UK, you then need to make clear copies of each. The Home Office states that these need to be copied and stored in a way that means they cannot be altered – whether this is an electronic or hard copy. They also advise that documents must be stored for the length of the person’s employment and for two years after they leave your business (at which point the documents must be securely destroyed). The following must be copied and retained:

• Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
• All other documents: the document in full, including both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).

Acceptable documents for right to work in the UK checks

As outlined above, employers must ensure the documents provided by employees are acceptable to the Home Office. The acceptable documents within each group are as follows (note: these are taken directly from the official Home Office guidance) ² :

List A documents (permanent right to work and provides a continuous statutory excuse):

• A passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
• A passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland.
• A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom indefinitely.
• A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay
• indefinitely in the UK or has no time limit on their stay in the UK.
• A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
• A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK, 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.
• A birth or adoption certificate issued in the UK, 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.
• A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, 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.
• A certificate of registration or naturalisation as a British citizen, 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.

List B Group 1 documents (for those with temporary work rights; these provide a time-limited statutory excuse lasting until the expiry date of leave):

• A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
• A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question.
• A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom for a time limited period and to do the type of work in question.
• A current Immigration Status Document containing a photograph issued by the Home

Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, 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.

List B Group 2 documents (for those with temporary work rights; these documents provide a statutory excuse for six months):

• A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30th June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
• An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
• A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
• A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix

EU to the immigration rules (known as the EU Settlement Scheme), on or after 1st July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.

How to complete the right to work check

There are two ways to verify a person’s right to work:

• By using the Home Office online right to work check service
• By manually checking the documents provided to you by the individual (we discuss this in detail further down this article).

Online right to work check service

To assist employees and employers in carrying out the necessary right to work checks in a compliant manner, the Home Office provides an online employer checking service¹. To use this service, the employee will first need to provide you with a ‘share code’, which gives you permission to see their right to work details. As an employer, you then enter the employee’s date of birth and share code. In return, you will then be able to see details of:

• The types of work the individual is permitted to do
• how long they are permitted to work in the UK (there may be no time constraint depending on their immigration status)

The Home Office will send you a Positive Verification Notice which will a) show that you checked their right to work status and b) that they have the right to work. This should then be filed as evidence that you have completed the correct process.

Penalties for not carrying out right to work checks

Where cases of illegal working are confirmed, the government will take action against the employer, potentially including:

• A civil penalty of up to £20,000 per illegal worker;
• In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine;
• Closure of the business and a compliance order issued by the court;
• Disqualification as a director;
• Not being able to sponsor migrants;
• Seizure of earnings made as a result of illegal working; and
• Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector

As such, it is essential that all employers put in place a clear and repeatable process to make sure that the right to work is checked for all prospective and existing employees.

References:

¹ GOV.UK: View a job applicant's right to work details

² Home Office: Employer right to work checks supporting guidance