Employer's obligation to prevent illegal working

An employer must check right to work through one of the following three methods before the employee commences employment:

1. A manual right to work check (all citizens)

2. A right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) (British and Irish citizens); or 

3. A Home Office online right to work check (non-British and non-Irish citizens). 

There are three basic steps: 

1. Obtain original versions of one or more of the acceptable documents (List A or List B);
2. Check the documents in the presence (physical or virtual) of the holder; and 
3. Make clear copies of the documents, retain the copies and record the date on which the check is made. 

Employers must check the validity of the documents in the presence of the holder to ensure: 

• They are genuine 
• That the person presenting them is the prospective or existing employee 
• That the photograph and dates of birth are consistent across documents and with the person’s appearance.

In a manual check employers should take all reasonable steps to check validity of the documents If a document turns out to be false, the employer will only be liable if it is “reasonably apparent” that it is false Employers must retain a clear copy of the document for the duration of employment AND for two years after the employment has come to an end

List A documents: (e.g. British or Irish passport; proof of ILR) statutory excuse is for entire employment 

List B Group 1 documents: (e.g. current passport showing time-limited right to work) statutory excuse lasts until the expiry date of the holder’s immigration leave; in order to retain a statutory excuse, employer must undertake follow-up right to work checks before expiry

List B Group 2 documents (e.g. document showing application into EUSS on or before 30 June 2021, e.g. Application Registration Card issued by Home Office stating holder is permitted to take employment in question) give an employer a time-limited statutory excuse for six months only; in order to retain a statutory excuse, employer must undertake follow-up right to work checks 

Note that all List B Group 2 documents need additionally to have a Positive Verification Notice from the Home Office Employer Checking Service

List A: no follow-up checks needed 

List B Group 1: follow-up needed to retain statutory excuse 

1. If employee has a current Group 1 document, follow up check should use this document, and statutory excuse continues for as long as date shown on document; 
2. If employee has outstanding in-time application, statutory excuse lasts 28 days from expiry date of employee’s permission “ this is to enable you to verify whether the employee has permission to continue working for you” 
3. During this 28-day period employer must contact the Employer Checking Service and receive a Positive Verification Notice; alternatively carry out a Home Office online check to confirm employee continues to have right to undertake the work
4. If employer receives a Positive Verification Notice the statutory excuse lasts a further six months from the date in the PVN 
5. If employer receives a Negative Verification Notice, the employer’s statutory excuse is terminated and employer should no longer employ the employee. 

List B Group 2: follow-up needed to retain statutory excuse Employer must contact the Employer Checking Service within six months and receive another Positive Verification Notice. That PVN will only last six months from the date in the PVN. Employer needs to check again within six months.

Since 6 April 2022 employers can use Identity Document Validation Technology (IDVT) via the services of an IDSP to complete digital identity verification element of right to work checks but only for those who hold British and Irish valid passport (or Irish ID card) 

Provides a continuous statutory excuse to the employer 

But only as long as employer reasonably believes that the IDSP carried out their checks in accordance with guidance set out at Part 2 of the statutory code 

Employers need to check that the IDVT output is consistent with the employee details and retain a clear copy of the IDVT identity check for two years after end of employment.

People with eVisa, Biometric Residence Card, Biometric Residence Permit, Frontier Worker Permit, are only able to evidence their right to work using the Home Office online checking service. 

Employers must: 

1. access the Home Office online right to work checking service 
2. be satisfied that the photo is of the employee 
3. retain a clear copy (electronic or hardcopy) for two years beyond end of employment and then destroy it securely If the Home Office online check does not confirm right to work, the employer does not have statutory excuse.

How we can help

We are well versed in all the required right to work checks that employers must undertake. We work closely with businesses to ensure that their HR processes are robust and can help to design and audit current right to work checks in the workplace. We will simplify the process for you and help to protect you and your business from any immigration compliance issues. 

Article by

Natasha Davies

nd@kilgannonlaw.co.uk

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 12.12.24