Right to Work Checks

In accordance with the Asylum and Immigration Act 1996, it is the employer’s legal obligation to prevent illegal working in the UK as it is against the law to employ an individual who does not possess the right to work. Employers are therefore expected to undertake the relevant checks on right to work documents for all employees prior to the commencement of their Employment.

The Home Office have provided extensive guidance in this area and therefore expect employers to comply with the right to work checks. It is extremely vital that these checks are undertaken correctly and in line with the Home Office’s guidance.

How to undertake Right to Work checks

The checks that must be carried out are as follows:

1. Obtain the individual’s original document(s)

   – The Home Office have provided guidance consisting of two separate lists, commonly referred to as list A and list B. By way of a brief outline, List A usually applies to those individuals who do not have any work restrictions imposed on their right to work and as such the documents relied upon initially to verify their right to work remain valid for the length of their Employment. In contrast, List B is applicable to those with restrictions and as such the right to work checks must be undertaken every 12 months.

It is important to note that the guidance published by the Home Office is regularly updated and it is the employer’s responsibility to ensure that they are relying on the correct and up to date version.

1. Check the individual’s original documents(s)

   – Any checks undertaken on the individual’s original documents must be done in person in the presence of the individual and a note of the date the checks were carried out also needs to be made as checks may need to be repeated once every 12 months as mentioned previously. Additionally, it is important that the employer physically holds the document and confirms that the picture in the document is a true representation of the individual they are employing. This measure is to allow employers to ensure to the best of their ability that the document is not false; an employer will only face liability if it is obvious that the document is false.

2. Obtain a clear copy of the document(s)

   – Employers should ensure that they place such copies in a safe place for two years following the termination of the individual’s Employment as they may require the copies at a later date. It is acceptable to obtain copies in electronic format or alternatively, in hard copy irrespective of whether the copies are in colour or black and white.

What are the implications of not undertaking right to work checks correctly?

The penalties for employers who fail to follow the checks outlined above are very serious. If it is found that an employer has employed an illegal worker and has not carried out the checks above, the employer could be liable for a fine of up to £20,000 per illegal worker and/or five years in prison.

Employers can also have their Sponsor Licence revoked if they hold one and even if an employer does not currently hold a Sponsor Licence, any applications made in the future to obtain a Sponsor Licence will likely be unsuccessful.

Employers should regularly undertake checks on the information held on all employees to ensure that no further checks are required and as such keeping records updated is paramount. Employers should also provide regular training to the employees responsible for carrying out the right to work checks however, this carries risks as the employer will still be held liable in the event of an error made by another individual carrying out the checks.

The consequences of not following the correct right to work checks can be devastating to organisations and businesses in the UK and as such it is extremely vital that employers implement a detailed and rigorous process to ensure that these checks are carried out correctly.

Undertaking the checks correctly will protect employers who are later found to have unintentionally employed individuals without the right to work in the UK. This protection provides employers with a statutory defence against prosecution for employing someone without the right to work.

How we can help

At OTS Solicitors we ensure that right to work checks are undertaken competently and attentively. This will provide businesses with comfort in knowing that the checks have been carried out in accordance with the Home Office guidelines.

We offer the following services in order to best meet our clients’ business needs:

• We will ensure that the correct documents are collated from List A and List B in line with Home Office policy

• We will provide support and guidance on how to ensure that the documents are genuine and that photocopies are taken in the format accepted by the Home Office

• We will advise you of how to store the documents in a safe location and how to record the checks to ensure future checks are carried out on time

If you wish to obtain advice on complying with the right to work checks, please contact our specialist team of Immigration Solicitors on 0203 959 9123

Author: Najma Ali