In Northern Ireland (and the rest of the United Kingdom (“UK”)) there is a statutory duty placed on employers that they shall not employ individuals who do not have the right to work in the UK.

Getting right to work checks wrong can have significant financial, reputational and operational repercussions for employers if illegal working occurs.

However, if you are found to be employing an illegal worker, you will have a ‘statutory excuse’ against such illegal working if you carried out a valid right to work check (including any follow up checks required). Without a statutory excuse, if illegal working occurs, the employer will be liable for a civil penalty of up to £20,000 per illegal worker. As such Employers will appreciate the importance in ensuring they obtain and retain this statutory excuse.

Who do you Conduct Checks On?

Businesses should:

• ask all prospective employees to demonstrate their right to work using either a manual document check as set out in the Code of Practice, or by using the Home Office online right to work checking service. To ensure that you do not discriminate against anyone, you should provide every opportunity to enable an individual to prove their right to work.

• not discriminate when conducting right to work checks. You should conduct right to work checks on all potential employees, including British and Irish citizens.

• not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK. Do not simply check the status of those who appear to be migrants, as this is likely discriminatory.

 How and When do you Conduct a Right to Work Check?

You should conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you, and in some situations again at a later date (see follow up checks below).

There are two types of right to work checks: a manual document-based check and an online check.

In certain situations, employers will also need to use the Employer checking service, for example where an individual has an outstanding immigration application.

Manual Check

There are three steps to conduct a manual document-based right to work check. You will need to complete all three steps to establish a statutory excuse.

1. Obtain acceptable Right to Work documents

You can only accept documents from the Home Office’s List A, List B Group 1 or List B Group 2. The Home Office update these lists regularly so you should always use the most up to take lists which are available here. 

2. Check the validity of the Right to Work documents 

You must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering. This includes checking:

• The photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation.
• Expiry dates for permission to be in the UK have not passed (if applicable).
• Any work restrictions to determine if they are allowed to do the type of work on offer.
• The documents are genuine, have not been tampered with and belong to the holder.
• The reasons for any difference in names across documents e.g. original marriage certificate, divorce decree absolute, deed poll.

3. Copy the documents provided

You then have to make a formal record of the documents you have checked.

The Home Office have set requirements for how right to work checks need to be recorded. You should ensure that each document is copied at the time the check is made. The copy must be clear, and in a format which cannot be altered or edited at a later date. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check.

The copy then has to be retained securely by your organisation, either electronically or in hardcopy. This evidence must be retained for the duration of the individual’s employment and for a further two years after they stop working for your organisation.

Covid arrangements

At this time there are adjusted processes in place due to the Covid-19 pandemic. These temporary arrangements are in place until 30 September 2022. This means that until 30 September:

• checks can be carried out over video calls;

• job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;

• employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

Online Checks

The Home Office have been gradually moving towards an online and digital system of right to work checks, and the option of completing online right to work checks has been available for a few years. At this time it is not possible to conduct an online right to work check in all circumstances, as not all individuals will have an immigration status that can be checked online. In circumstances in which an online check is not possible, you should conduct the manual check.

To carry out an online check employers must use the Home Office online right to work checking service (using a specific portal and share code process) if they wish to secure a statutory excuse.

As with manual checks there are three steps for online checks that all need to be completed to obtain a statutory excuse:

• Use the Home Office online service to check the person’s right to work;
• Check:
  1. that the photograph and details shown on the online check accord with your knowledge of the individual (i.e. how the individual looks in person or how they look in a live video call); and
  2. the validity of the right to work, and if it is time limited;

• Retain evidence of the check, by saving the online check as a PDF or printing the same.

Are some online checks mandatory?

Many employers will already be familiar with online checks in that they are already required for EEA nationals who have been granted pre-settled or settled status as they have a digital status and no physical document.

In an effort to move things further towards a digital system, from 6 April 2022, biometric residence cards will be removed from the list of acceptable documents that can be accepted for a manual right to work check. This means that employers will no longer be able to carry out manual right to work checks against those who hold a biometric residence permit, biometric residence card or a frontier worker permit (“biometric residence card”) and an online check will need to be carried out instead.

The Home Office have however confirmed that retrospective checks will not be required on biometric card holders who used their physical card to demonstrate right to work prior to 6 April 2022.

Do I Need to Carry Out Any Follow Up Checks?

You may need to carry out follow up checks where the individual has a time-limited right to work, for example if the individual provides a physical document on List B, where the online check notes that the right to work has an expiry date, or in circumstances where you need to use the Employment Checking Service and have obtained a positive verification notice. Where right to work is time limited it is vital that follow up checks are carried out so that the business retains their statutory excuse.

In these instances, you will need to recheck the right to work of those individuals, and the recheck should be done prior to the expiry of their current permission.

The follow-up check is designed to prevent people from overstaying their immigration permission where this is time limited.

Loss of Right to Work

If during a repeat check or at any time during employment you become aware that an employee no longer has the Right to Work, or that they are in breach or excess of their permission by being employed by you (e.g. number of working hours) and you continue to employ that person, you become liable for a civil penalty and the criminal offence of knowingly employing an illegal worker – even if you previously obtained a statutory excuse!

It is best to seek advice as soon as you become aware of an employee’s loss of permission before taking action. Whilst dismissal is in many cases the appropriate course of action, instant dismissal of an employee who no longer has the Right to Work can in some cases give rise to employment law issues, such as unfair dismissal or discrimination claims as such it is important to take advice before attempting such dismissals.

Cross Border Isssues -EEA Citizens

Please do remember that since 1 July 2021 individuals from the European Economic Area (except Irish citizens) can no longer rely on simply an EEA passport to evidence a right to work in the UK. They will need to demonstrate an additional immigration status for example settled or pre-settled status.

This is a particular issue for employers based close to the Northern Ireland – Republic of Ireland border as there may be individuals from the EEA who reside in the Republic of Ireland who will not have been eligible to obtain such additional immigration status as they did not reside in the UK.

Such individuals, if they worked in the UK and lived in the Republic of Ireland prior to Brexit, may be eligible for a Frontier Worker Permit – this can be accepted as a valid right to work document, and should be checked using the Online checking system.

If however the individual does not hold additional immigration status such as settled status or a frontier worker permit they will likely need to obtain a visa to be eligible to work in the UK.

Conclusion

Right to work checks are an integral part of the recruitment process and an on-going duty for employers.

Employers should:

• Review your existing right to work policies and practices regularly to ensure these are updated to reflect the most recent right to work guidance at all times.

• Train staff on any changes to right to work guidance. It is important that those in the business responsible for recruitment and right to work checks are aware of any changes and appropriately trained on them. Remember, it is vital that compliant checks are completed to secure a statutory excuse against illegal working.

• Plan ahead. Diarise and keep track of any repeat checks required in a location that can be accessed by more than one colleague, to ensure that any follow up checks are carried out.

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