In today’s fast-evolving regulatory landscape, UK employers face heightened responsibilities under the Right to Work regime, requiring vigilant compliance to avoid severe penalties and maintain a strong employer brand. With recent legislative changes and a steep rise in civil fines for non-compliance, conducting Right to Work checks in the correct and consistent manner is essential for risk mitigation and business continuity.
As of recent reforms, employers who hire individuals without proper work authorization risk a first-time fine of up to £45,000 per illegal worker, which escalates to £65,000 for repeat offences. Beyond civil penalties, criminal charges, reputational harm, and sponsor licence suspensions are real possibilities for those found in breach of these requirements. In this guide, we provide a comprehensive breakdown of Right to Work checks, aiming to equip employers with actionable insights on compliance, ensuring they meet legal obligations while safeguarding their operations.
What is a Right to Work Check?
A Right to Work check is a legal obligation for all UK employers under the Immigration, Asylum and Nationality Act 2006, specifically outlined in Sections 15–25. The process involves verifying that every individual hired has legal authorization to work in the UK, with acceptable documentation meticulously reviewed and retained as proof of compliance. Importantly, these checks must be carried out consistently across all employees, regardless of their nationality or ethnic background, to avoid allegations of discrimination.
In the event of an alleged compliance breach, employers who have conducted a Right to Work check in accordance with Home Office standards may establish a “statutory defence,” potentially protecting them from civil penalties. It’s crucial, therefore, that these checks are completed accurately and well-documented to support employers against enforcement actions and mitigate operational risks.
The High Stakes of Non-Compliance
Failing to carry out compliant Right to Work checks can have far-reaching consequences, including:
- Civil Penalties: Employers can be fined as high as £45,000 per illegal worker, with repeat offenders facing £65,000 per worker.
- Criminal Liability: Knowingly employing individuals without the right to work can lead to criminal prosecution, resulting in unlimited fines and potential imprisonment.
- Reputational Damage: Non-compliance tarnishes a company’s public image, potentially damaging customer trust and brand equity, particularly if the business is listed on the Home Office’s offences registry.
- Operational Disruption: Illegal working investigations can disrupt operations, lead to the loss of key employees, and divert resources away from business priorities.
- Sponsor Licence Penalties: Non-compliance can result in a suspension or revocation of an employer’s sponsor licence, potentially curtailing the visas of sponsored employees and impacting workforce stability.
Who Needs a Right to Work Check?
The Right to Work regime mandates that all UK-based employees undergo pre-employment checks, including:
- Permanent Employees – Those hired on a permanent basis.
- Temporary and Seasonal Workers – Essential for roles with short-term contracts.
- Part-Time Employees – Required regardless of weekly hours.
- Casual and Zero-Hours Workers – Must be checked despite variable hours.
- Contractors and Freelancers – Even non-traditional employees engaged through the business need checks if their work is controlled by the employer.
- Volunteers – Where the role resembles paid employment or involves formal obligations, a check is required.
Special categories of workers may involve additional considerations. For instance, EU, EEA, and Swiss nationals, following Brexit, are no longer automatically eligible to work in the UK and must show either settled or pre-settled status. Other complexities may arise for student visa holders with work hour restrictions, seasonal agricultural workers, or sponsored visa holders such as those under the Skilled Worker visa. Employers dealing with cases that don’t fit standard criteria may wish to seek professional advice to avoid unintentional breaches.
How to Conduct Right to Work Checks: A Step-by-Step Guide
Employers have several options for conducting Right to Work checks, ranging from manual document verification to online systems, with specific requirements for each.
- Manual Right to Work Checks
Manual checks require face-to-face document review, where the employer examines the original documents to verify an individual’s identity and work eligibility. Key steps include:
- Obtaining original documents: Meeting the individual and reviewing the physical documents, ensuring their presence during the check.
- Verifying document authenticity: Employers should verify that photos and personal information match the individual. Employers are also advised to be vigilant against reasonably apparent signs of fraud.
- Retention of records: Copies of documents should be securely stored, retaining all relevant pages for passports or entire documents for other types, for the duration of employment and two years post-employment.
Acceptable documents vary depending on an individual’s immigration status. The Home Office categorises these into two lists: List A for individuals with permanent right to work, and List B for those with time-limited right to work, who require follow-up checks upon expiration of their visa.
- Digital Right to Work Checks
With Identity Document Validation Technology (IDVT), digital checks are permitted for British and Irish passport holders. While offering efficiency, employers are responsible for ensuring the technology meets the Home Office’s recommended “Medium Level of Confidence” standard. IDVT must be used correctly, as manual checks conducted through digital identity service providers (IDSPs) are not eligible for statutory defence.
- Online Right to Work Checks Using a Share Code
For those holding biometric permits, EU Settlement status, or frontier worker permits, employers can verify Right to Work using the Home Office’s online service. Employers need a share code provided by the employee, confirming their permission to work. Since April 2022, physical BRP, BRC, and FWP documents are no longer accepted, making the online system the only permissible method for these categories.
- Employer Checking Service (ECS)
In cases where neither manual nor online checks are feasible, employers can request confirmation of work status through the Employer Checking Service (ECS) , such as when an individual’s documents are with the Home Office. A “Positive Verification Notice” issued by the ECS provides statutory defence for six months.
Follow-Up Checks and the Impact of Expiring Work Visas
Employers must conduct follow-up checks for employees with time-limited permissions, such as visa holders, and repeat these checks before the visa expires to retain statutory defence. If an employee is awaiting a Home Office decision on a visa extension or appeal, employers have a statutory grace period of 28 days post-expiry to receive a PVN, allowing continued employment pending the Home Office outcome.
Once an employee’s visa expires without an application for extension, continuing employment may be deemed illegal, exposing the employer to civil and criminal penalties and potential sponsor licence revocation. Given the risks associated with illegally employing workers, maintaining an updated system for follow-up checks is essential.
Recent Developments Impacting Right to Work Checks
The expiration of COVID-adjusted Right to Work checks in September 2022 marked a return to stricter standards. Employers can no longer rely on digital or video checks unless using Home Office-approved IDVT for certain British and Irish citizens. Similarly, Home Office guidance in February 2023 expanded online check eligibility to eVisa holders, reducing reliance on the ECS for these cases.
For EU workers, post-Brexit regulations require documented proof of pre-settled or settled status. From July 2024, employers are exempt from repeat checks for employees with pre-settled status, simplifying ongoing compliance.
Final Thoughts: Navigating Right to Work Compliance in the UK
As the Right to Work regime continues to evolve, employers face increasing complexity and stakes in hiring practices. To maintain compliance and avoid severe repercussions, it’s vital that employers implement consistent, legally compliant checks across their organisations, keeping up to date with legislative developments and regularly reviewing their procedures.
Employers should consider seeking professional guidance in complex cases and investing in robust record-keeping practices. By doing so, they can protect not only their businesses from enforcement actions but also uphold their reputations in the increasingly regulated and scrutinized UK employment landscape.
Get in touch: For a comprehensive understanding of your options or queries on UK immigration matters, contact GigaLegal Solicitors at 02074067654 or click here to book a no-obligation consultation with an immigration expert.