With the recent news that the Home Office enforcement teams have carried out 5,424 immigration raids in the period from July 2024 to 31 January 2025, with 828 in January 2025 alone and issuing 1,090 civil penalty notices from July 2024 to January 2025, employers are under more pressure than ever to ensure that they are meeting their right to work check obligations, as set out in the Home Office guidance which was updated on 12 February 2025.
What is a right to work check and why are they required?
A right to work check is where an employer confirms, either by looking at original documents or by conducting an online check through one of the government services, that an individual has permission to work in the UK and to carry out the role that is on offer. This could be because they are British, have Indefinite Leave to Remain in the UK or have some other form of immigration permission which gives them the right to work, for example a spouse visa or a graduate visa.
When carried out correctly, a right to work check will give an employer a statutory excuse, or legal defence, against a civil penalty for illegal working. Employers who hire individuals who do not have the right to work in the UK are liable to fines which range from £45,000 per worker for a first offence to £60,000 per worker for employers who have previously been issued with civil penalties.
Who's right to work needs to be checked?
Right to work checks must be carried out on all employees, regardless of their nationality, immigration status or perceived nationality or immigration status. It is important that employers apply their policies uniformly to avoid any potential claims of discrimination.
When are right to work checks required?
Crucially, right to work checks must be conducted before employment commences. If a right to work check is conducted after employment has begun, even if only on the second day of employment, then the employer will have failed to establish a statutory excuse against a civil penalty.
Repeat right to work checks are required in respect of existing employees who are on time limited visas and in such cases, these checks should be carried out prior to the expiry of the initial permission, though a 28-day grace period does apply in certain limited circumstances. This includes where, on the date of expiry of the initial permission, the employer is reasonably satisfied that the individual, who is an existing employee, has an outstanding application to extend or vary their permission to remain in the UK.
How are right to work checks carried out?
Right to work checks must be conducted in line with the Home Office guidance, linked above. There are different processes depending on what nationality the individual holds and what document they are using to prove their right to work.
In essence, checks can be carried out either manually or digitally. Manual checks can be undertaken on British or Irish passport holders and limited categories of non-British and Irish nationals, such as those with an Indefinite Leave to Remain endorsement in their passport. Acceptable documents for right to work checks are listed in the Home Office guidance, separated out into two lists: List A and List B. It is important to note that manual checks can only be conducted in respect of the documents contained in these lists. If a person cannot provide documents listed therein, then a digital check will be required. One thing that is important to note is that a UK driving licence and evidence of having a national insurance number are not evidence of right to work in the UK.
To perform a manual check, you must see the original documents, verify the individual's identity against the original document and keep a copy of the document. The person conducting the check should sign and date the copy and write something along the lines of the following: 'Original document seen by [name] on [date].' Finally, where the individual has time limited permission to work in the UK, you must ensure that you diarise follow up checks towards the end of the validity of their visa.
With the UK's move to a fully digital immigration system, digital right to work checks are now mandatory for certain categories of immigration permission. Digital checks were made mandatory for all BRP holders on 6 April 2022 and are also required on anyone with an eVisa. This latter category will now cover almost all individuals on time limited immigration permission or with Indefinite Leave to Remain, since all BRPs expired by 31 December 2024, as part of the digitalisation of the system.
To conduct a digital check, employers must ask the individual for a share code. This is a nine-character long code which the employer must then enter on the Home Office's right to work check site, along with the individual's date of birth to display their photo and immigration status. Employers must satisfy themselves that the photo on the online check is of the person who has presented themselves for work, download the output of the online check and, where the person has time limited permission to remain in the UK, diarise reminders ahead of their visa expiry so that repeat checks can be carried out in time. For student visa holders, employers must also keep the necessary additional documents relating to term dates.
Is it necessary to perform annual checks?
It is only necessary to carry out a check before employment commences and, where the employee is on a time limited visa, at the time the visa is expiring. However, we recommend performing regular reviews or audits to make sure that your processes are being followed to and to allow for any errors to be identified and corrective action taken.
Summary
The law in relation to right to work is complicated, changes regularly and the penalties for errors are severe. The best way for employers to protect themselves is to ensure they have robust right to work checks procedures in place and monitor and review these regularly.
If you have any questions about how to carry out a right to work check, implementing a right to work check policy, carrying out a compliance audit or would like some detailed and bespoke training in this area, please contact a member of the Immigration team.
