UK right to work checks – guidance for employers

Why UK right to work checks are important

3,089 civil penalties issued in 2016

According to the UK Visas and Immigration Enforcement Agency’s quarterly reports, there were 3,089 civil penalties issued to employers for hiring illegal workers in 2016, generating fines of £50 million – a pretty nice income for the Home Office. The highest number of fines was issued in London and the South East region.

Fines of up to £20,000 per illegal worker

The maximum fine for hiring illegal workers is £20,000 per illegal worker – so even a handful of illegal workers on the books could easily cripple a business. If an employer knowingly hires someone who does not have the right to work in the UK, the individual employer could face up to five years in jail (whereas the illegal worker would face six months).

Checking staff is a core employer duty

Checking that all the staff working for you have the right to work in the UK is one of the core duties of an employer. It’s not an extra, or a nice to have: it’s essential for all businesses, regardless of size or industry sector. As well as the penalties outlined above, any instance of employing an illegal worker will be recorded on the Home Office central system and will downgrade or revoke your license to hire any foreign nationals in the future. It will also trigger more regular spot checks by HMRC on an ongoing basis.

Who has the right to work in the UK?

If someone holds a British passport or a passport from an EU country, they automatically have the right to work in the UK and do not require any additional visa documentation.*

EU countries: Austria, Belgium, Bulgaria, Croatia**, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, UK

Nationals from the EEA (Norway, Lichtenstein and Iceland) and Switzerland also have permission to work in the UK although these countries are not part of the EU.

*Correct as of Sept 2017; subject to change after Brexit.
**Croatian nationals may need to register to work depending on their previous work history.

Who has to undergo checks?

Everyone working as an employee or worker in your business needs to provide you with evidence that they have the right to work in the UK. This includes permanent staff, full time or part time – regardless of their length of service; zero hours workers; fixed term contract workers; temporary workers; and work experience students or interns.

Requesting proof of right to work in the UK should be a standard part of the recruitment process. To avoid any discrimination claims, make sure that everyone is asked at the same stage in the recruitment process and that the same checks are applied to everyone. Never make assumptions about someone’s right to work in the UK based on their race or ethnicity, their accent, their age, time spent living in the UK, family connections or their education.

Exceptions

• Agency workers; if they are employed directly by an employment agency, then the responsibility for verifying right to work sits with the agency, rather than the employer.
• Sub-contractors or staff directly recruited by a third party supplier, for example, cleaning or security staff whose employment relationship is with the supplier, not with the company using the services. As such, the supplier recruits, trains and pays these staff and has control over who is supplied to work for your business.
• Genuinely self-employed contractors, although caution must be exercised here as they can often fall into the ‘worker’ or even ‘employee’ category (despite the best of intentions) which means you as the ‘employer’ will have to check their right to work in the UK.

When to check

Right to work in the UK checks must be made BEFORE employment commences.

This can be done as part of your recruitment process (for example, at final interview stage) or you can ask for documents prior to someone starting with you. Once the initial check is complete, you will only have to request to see documents again if their immigration circumstances change, or if they have a work permit or visa with an expiry date, in which case you will need to check their visa document at least annually.

What to check

You must see an original passport (and visa document if applicable), not a photocopy. The passport must be valid for that individual.

If the person is from the UK and does not have a passport, they must provide an original Birth Certificate. Copies of passports or birth certificates are not acceptable as these could be fraudulent.

A UK driving license is NOT proof of being able to work in the UK as it can be easily obtained without a permanent visa.

When viewing the documents, look carefully at the photo: is this the same person standing in front of you? This sounds obvious but careful attention must be paid when examining photos in passport documents. It is possible that someone may look different from a photo taken seven or eight years ago but they should still be recognisable.

Also look at the date of birth and compare it against the person you are hiring and their supposed experience level. Does it all add up? Does their name have the correct spelling and crucially, is it the same name they have given you on previous documents? Any change in name, e.g. due to marriage or divorce, needs to be supported by appropriate documentation such as a marriage certificate.

Check the expiry date of any visa document or residence permit. If the visa has expired, the person may no longer have the right to reside or work in the UK. Note that any visas with an expiry date have to be checked at least annually.

Lastly, does the document appear genuine? Does it look as though it has been tampered with? If you have any doubts, you can contact the UK Border Agency directly for assistance in verifying documents.

Taking copies of ID

Employers need to take a copy of the original ID document in the presence of the employee and sign and date the copy to say that they have seen the original. You should take a copy of the photo page plus any pages with information on entitlement to remain in the UK or work in the UK e.g. work visas and/or residence permits. Note that any employers who fail to take copies of all the necessary documents, and then sign and date them, will not pass the HMRC’s requirements and could face harsh fines, even if checks have been carried out.

Biometric Residence Permits are shown on a credit card sized document similar to a driving license. Both sides of the card need to be copied.

Copies should be stored securely, either in hard copy or electronic format, for a minimum period of two years post-employment. The HMRC border agency can arrive at your business premises at any time without prior notice and request to see copies of all your employee passports and visas.

Visas

There are various forms of work visas and residence permits issued which allow foreign nationals to live and work in the UK legally. Some visas are permanent and therefore only need to be checked once at the start of employment. Any visa with an expiry date needs to be monitored and checked regularly (at least annually or prior to expiry date – whichever is soonest). The expiry date is clearly visible on the visa document and means that the right to work in the UK will cease on that date unless the visa is renewed or extended. If the visa is renewed, you need to see the new visa (original document) and keep a copy of it on file. Any work restrictions will be highlighted on the actual visa document.

Visas are usually inserted into a passport. You should check that all the details on the visa document correspond to the passport holder’s information. If someone is in the process of applying for a visa they may still be able to work whilst they await the outcome of their application. The UK Border Agency offers a checking system for employers to help with this.

Student Visas

Some students are permitted to work in the UK alongside their studies. The amount of work they can do varies from 10 hours during term time (20 hours for university students) to limitless work during the holidays. Their individual visa document will specify how many hours they are allowed to work.

You are required to obtain the following documentation before you can allow a student to work with you:

• confirmation of their course of study and educational institution in the UK;
• confirmation of their academic term dates and vacation periods to cover the period in which they will be studying whilst employed by you.

Need some help?

You are not expected to be a border agency professional, private detective or immigration expert. But as an employer, the onus is on you to check right to work documents thoroughly and consistently – or face the consequences.

If it all seems a little daunting, or you don’t have the time to spare, fear not, help is at hand. Here at Business Clan, we provide advice and assistance with UK right to work checks.

We offer a self-service solution via our hosted HR platform or a full-service solution where we handle and process the checks for you. Our hosted platform processes checks via secure government gateways, is ISO27001 compliant and stores all the relevant paper work and supporting documentation which you need to keep to demonstrate compliance.

Our fees are accessible for SMEs and we’re sure you will find it’s worth it for peace of mind compliance that’s managed quickly and effectively. If you would like to hear more, please get in touch or speak to one of our HR specialists on 020 8798 0478.