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How Can Sponsors Check an Individual Has The Right to Work by Law?

Many employers have a preconception that right to work checks are only required for those hiring from overseas; this is not the case. In fact, all employers are required by the Home Office to carry out right to work checks, to reduce the rates of illegal working. As the government’s guidance explains, “All employers in the UK have a responsibility to prevent illegal working. You do this by conducting simple right to work checks before you employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status”. Thankfully, there is plenty of guidance explaining how to complete right to work checks in the correct manner. In this article, we will explain how UK employers, including sponsors, can check that candidates have the legal right to work.

Why Do I Need To Carry Out Right To Work Checks?

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 which 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.

What Are The Penalties For Not Carrying Out Right To Work Checks?

The government has a range of mechanisms across its various agencies which are designed to detect and follow up on cases of potential illegal working. 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, the exact penalty will be based on a range of factors, including the industry in which the employer is operating, and the severity and extent of the breach. It is possible to have the amount of any civil penalty reduced significantly by taking mitigating action. Mitigating actions include whether the employer has:

  • reported suspected illegal working before it was identified by the Home Office
  • cooperated with the Home Office’s investigation
  • right to work checking practices in place

What Is Involved In Carrying Out A Right To Work Check?

Right to work checks must be completed before a person is employed, not afterwards. There are two methods – a manual check and an online check.

Manual Right To Work Checks

There are three parts to a manual right to work check – Obtain, Check, and Copy. In the first step, you will need to obtain original documents from the candidate. The documents which are acceptable to the Home Office are defined in two lists, List A and List B. List A shows documents for people who have a permanent right to work in the UK, and List B is for those who have a temporary right to work.

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

  • that the documents are genuine
  • the names on the documents (bearing in mind it the person has changed their name through marriage or divorce)
  • that the photos match
  • any dates are correct
  • whether there are any work restrictions (often stated on biometric residence permits)

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 which 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).

Online Right To Work Checks

The government provide an online portal allowing employers to check the right to work of potential candidates. This method can only be used if the person has an immigration status which can be verified online; i.e. those with:

  • a biometric residence permit;
  • a biometric residence card; or
  • status issued under the EU Settlement Scheme.

The online process works by the candidate first viewing their own online Home Office record and then sharing this with the employer, who can then check the photograph and retain a copy of the check.

Final Words

If you have been advised by the Home Office that you have breached the Home Office guidelines for the right to work checks in the UK, it is important to seek legal advice as soon as possible. An immigration Solicitor will be able to defend your case and provide evidence to the Home Office showing that you should not be issued with a penalty. Doing so will be vital in ensuring that you can continue to sponsor skilled workers from outside of the UK.

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