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30 September 2021

Temporary right to work checks coming to an end

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Quick Guide for employers to carrying out right to work checks

It’s unlawful for you to employ someone who doesn’t have the right to live and work in the UK. So, before you take anyone on you must carry out the required checks.

If you do employ someone who doesn’t have the necessary right to work or live in the UK, you may be liable for a penalty of up to £20,000. But, if you carry out the right to work checks correctly, then you’ll be able to raise a statutory defence, which means you won’t have to pay any penalty.

 

What you need to do

Before you employ someone, you must carry out right to work checks. You should carry out these checks on all prospective employees. To do the checks properly you need to follow a three-step process of “obtain, check and copy”:

Obtain the employee’s original documents.

Check the documents while your prospective employee is there. You need to make sure, as best you can, that they relate to the individual and are original, unaltered and valid.

Copy the documents and record the date you checked them. Make a note of any follow-up checks you need to do, such as where the employee has a time-limited permission to stay or work in the UK or where you need a further document from them. You must keep copies of the documents as a hardcopy or as a scanned copy in a format which cannot be manually altered, such as a JPEG or a PDF file.

In addition to carrying out the three steps, you’re not allowed to employ anyone you know or reasonably believe is an illegal worker. You must also comply with the requirements of the points-based system if you’re a sponsor under it.

To help you check that you have carried out the three steps correctly, the Home Office has produced a checklist that you can download here

Checking documents

The types of documents you need to see will depend on whether the person has an unrestricted right to live and work in the UK, such as a British citizen or person with indefinite leave to remain status or is subject to immigration control. The documents are set out in two lists. List A documents refer to individuals who have a permanent right to work in the UK. List B documents refer to individuals who have a temporary right to work or need to supply further evidence of their right to work in the UK. List B is broken down further into two groups. Group 1 documents are those where the holder has a temporary right to work in the UK. Group 2 documents are those where you must undertake a Home Office Verification check and obtain a positive verification notice before you can employ the individual.

You must ask for and see the original documents from List A or List B. and carry out your checks while the employee is there. You should carry out right to work checks on all prospective employees.

List A

1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK. OR

2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland. OR

3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland. OR

4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland. OR

5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK. OR

6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. OR

7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer. OR

8. A birth (short or long) or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer. OR

9. A birth certificate (short or long) or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer. OR

10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

List B – Group 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. OR

2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. OR

3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence. OR

4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

List B – Group 2

1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment, which is less than 6 months old, together with a Positive Verification Notice from the Home Office Employer Checking Service. OR

2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.

3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

When you’re carrying out your checks, you need to satisfy yourself that the documents are genuine. You should look to see whether the photo ID and dates of birth are consistent across the documents and with your prospective employees’ appearance. You should also look to see whether the documents have been tampered with and ask the prospective employee to explain any name changes or inconsistencies in the documents.

Home Office verification checks

The Home Office has an online verification service, and you must contact it if you are doing checks on any prospective employee who:

• Has an outstanding application with the Home Office which was submitted before their previous permission expired or has a pending appeal or administrative review pending against a Home Office decision, and the employer is satisfied that is the reason why the individual is unable to produce any acceptable documents.
• Has an Application Registration Card as an asylum seeker that states that the individual is permitted to undertake the specific work- this is restricted to shortage occupations only.
• Has a Certificate of Application issued to or for a family member of an EEA or Swiss national which is less than six months old.

If any of these circumstances apply, then you need a “positive verification notice” from the Home Office to be able to use the statutory defence. You’ll need to carry out the three-step check on the prospective employee’s documents, but you need a positive verification notice as well.

Before using the service, you need to check whether the individual has a legal right to work in the UK and, if it is still not clear, you must obtain the prospective employee’s permission to undertake the check. You will need the individual’s full name, date of birth, nationality, job title, weekly hours worked, home address, Home Office reference number or case ID (if they have either). On top of this you will need to let the service have your business name, business type and business contact information.

Online right to work checking service

The Home Office has an online checking service, which was designed to be an alternative to requesting and retaining right to work documents from prospective employees. But, the service is only available in limited circumstances. The service can only be used to check the right to work of either non-EEA nationals who hold biometric residence permits or biometric residence cards or EEA or Swiss nationals who have been granted settled status or pre-settled status under the EU Settlement Scheme.

For more information contact our Employment Law team on 01284767766

Please note this article is provided for general information purposes only to clients and friends of Atkins Dellow LLP. It is not intended to impart legal advice on any matter. Specialist advice should be taken in relation to specific circumstances. Whilst we endeavour to ensure that the information in this article is correct, no warranty, express or implied, is given as to its accuracy, and Atkins Dellow LLP does not accept any liability for error or omission.

© Atkins Dellow LLP 2021

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