Discover the Documentation Required for Right to Work Checks

Employment law can be a daunting task for any business, but there are certain checks that you simply can’t ignore. Right to Work checks are a legal obligation for employers in the UK. Designed to prevent illegal working, our article sets out the documentation required for Right to Work Checks you will need your potential employees to submit as evidence. We’ll also take a quick look at the consequences of non-compliance. With Right to Work checks quick and affordable at MyVetting, we’ve made it easy to stay compliant with employment laws at all times. 

 What Are Right to Work Checks? 

Right to Work checks are the pre-employment checks that an employer undertakes to confirm that a potential employee has the legal status to work in the UK. Right to Work checks are essential to ensure compliance with the UK’s immigration and employment laws, by employing only those with the appropriate permissions for working in the country. 

Conducting Right to Work checks:  

1. Helps to reduce and prevent illegal employment and promote a lawful and secure business environment. 
2. Implements a fair and consistent approach to verifying individuals’ work statuses, mitigating the risk of discriminatory hiring practices. 
3. Establishes an employer’s ‘statutory excuse’, which will help to shield them from civil penalties in the event they unintentionally employ someone without the right to work in the UK. 

Legal Basis for Right to Work Checks in the UK 

The legal basis of the Right to Work check in the UK is rooted in the Immigration, Asylum and Nationality Act of 2006. The Act was further reinforced by an amendment in 2008, which strengthened the legal responsibility of employers to perform these checks. 

The Act states it is unlawful to employ an individual that lacks the right to reside and work in the UK, or whose limited permission to stay in the UK has lapsed. Employers that neglect to perform a Right to Work check and which are discovered to be intentionally employing an unauthorised worker could face legal repercussions and financial penalties. 

Documentation Required for Right to Work Checks  

There are two categories of acceptable documentation required for Right to Work Checks. They are set out by the Home Office on List A and List B.  

The range of documents needed for Right to Work checks is categorised into two groups:  

• List A  
• List B  

Each list contains several types of documentation that can validate an individual’s right to work in the UK for a specific length of time. The documents listed under these categories provide different degrees of assurance about an individual’s status. 

List A Documents 

Documents in List A deliver proof of an individual’s permanent right to work in the UK. Once these documents are presented and verified by the employer, no further checks are necessary. 

 Examples of Category A documents include: 

1. A passport indicating the holder’s status as a British citizen or a citizen of the UK and Colonies with the right of abode in the UK. 
2. A document certifying permanent residence or indefinite leave to remain or enter the UK, applicable for non-EEA nationals. 
3. A passport or other document confirming the holder’s nationality as a European Economic Area (EEA) country or Switzerland. 
4. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of an EEA country or Switzerland. 
5. A Permanent Residence Card issued to a family member of a national of an EEA country or Switzerland. 
6. A current Immigration Status Document issued by the Home Office with an endorsement indicating that the named person may stay in the UK indefinitely. 

 The documents noted in List A must be originals rather than copies, and they must be valid at the time of the check (however, an expired passport will be accepted as a valid form of identification). Employers must closely examine documents for authenticity and consistency, keeping an eye out for potential forgery or counterfeit. 

 List B Documents 

List B, documents provide proof of an individual’s limited right to reside and work in the UK. These documents indicate the individual has temporary permission to work in the UK and will necessitate follow-up checks. 

 List B is divided into two groups: List B Group 1 and List B Group 2. 

 List B Group 1 includes: 

1. A passport or travel document indicating that the holder is allowed to stay in the UK as they are the family member of a national from the European Economic Area (EEA) country or Switzerland. 
2. A Residence Card issued by the Home Office to a family member of a national from an EEA country or Switzerland. 
3. A valid Biometric Immigration Document issued by the Home Office stating that the person named can currently stay in the UK. 

 List B Group 2 includes: 

1. A valid Immigration Status Document issued by the Home Office with an endorsement indicating that the person named can stay in the UK, but with work limitations. 
2. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A(2) of the Immigration (European Economic Area) Regulations 2006, stating that the holder is permitted to take employment. 

 For List B, it’s essential that employers conduct follow-up checks when an individual’s work permission nears expiration. Keeping track of these dates is essential to avoid employing individuals illegally. 

The 2014 Immigration Act amendment also imposes a continuous duty on employers to verify an employee’s right to work, if they have temporary UK immigration status. In order to prevent potential racial discrimination during the recruitment process, the law mandates that employers must perform Right to Work checks on every single potential employees, regardless of their nationality or their ethnic background. The Home Office’s Code of Practice on Avoiding Discrimination offers further guidance on this matter. 

 Both employers and employees must understand and adhere to the legal framework around Right to Work checks. Laws and regulations constantly change and evolve it is the employer’s imperative to keep updated with any changes.  

Consequences of Non-compliance 

The act of employing someone without the right to work in the UK carries significant legal implications. The UK Government views non-compliance with Right to Work checks with utmost seriousness, resulting in severe repercussions for both employers and employees. It is critical importance to understand the potential penalties for employers and the implications for employees.  

 Potential Employer Penalties 

In business and commerce across all sectors, being uninformed about legal obligations is not a valid defence. Employers that neglect their duties concerning Right to Work checks may find themselves facing severe repercussions and penalties. These penalties can include:
 

1. Financial Fines: A ‘civil penalty’ of up to £20,000 per illegal worker can be imposed on employers who fail to perform the necessary ‘right to work check.’ 
2. Legal Consequences: Employers who intentionally hire individuals without the right to work in the UK could face up to five years in prison and an unlimited fine.
3. Reputation Damage: Public knowledge of a civil penalty can tarnish a company’s image. Additionally, such businesses may lose their licenses to sponsor migrant workers and students.

These severe consequences highlight the essential need for thorough and meticulous Right to Work checks across all potential hires. To mitigate against penalties, employers can establish a ‘statutory excuse’ by properly conducting, documenting, and maintaining records of right to work checks. 

 Possible Employee Consequences 

Employees also face significant repercussions for non-compliance with Right to Work regulations. Those without the right to work in the UK that knowingly participate in unlawful employment could encounter the following consequences:  

1. Legal Action: Individuals may face prosecution and a potential six-month prison sentence. 
2. Expulsion from the UK: Illegal workers, if discovered, can be deported or forcibly removed from the UK. 
3. Future Visa Restrictions: Being caught working illegally in the UK can adversely impact future visa applications, with certain visa routes becoming restricted or entirely inaccessible. 
4. Limited Access to Services: Illegal workers may be denied access to services such as healthcare, housing, or banking. 

 Given the potential consequences, it is strongly recommended that individuals seeking employment in the UK ensure that they possess the appropriate visa or documentation that allows them to work legally, thereby safeguarding their well-being and future opportunities.  

Documentation Required for Right to Work FAQS

1. What sort of documentation is needed for Right to Work checks?

The required documentation for Right to Work Checks typically includes identification documents such as a passport or birth certificate, along with proof of eligibility to work, which might be a work visa or resident permit. 

2. Is a driver’s license acceptable proof for Right to Work checks?

A driver’s license could serve as a form of identification, but alone, is generally insufficient for a Right to Work check. An additional document proving work authorisation, such as a resident permit or visa, is also needed. 

3. Are digital copies of documents acceptable for these check?

Digital copies are acceptable as long as they are clear, legible, and unaltered. However, employers should consult legal counsel or review governmental policies to ensure compliance. 

4. Would it be necessary to update the Right to Work documentation periodically?

Yes, periodic updates of Right to Work documentation may be required to ensure continued compliance, especially for employees who originally showed time-limited authorisation to work. 

5. Is there a penalty for an employer not conducting a Right to Work check?

Yes, employers who fail to conduct proper Right to Work checks can face significant fines and potential imprisonment for knowingly hiring someone who does not have the right to work. 

6. What is the procedure for conducting documentary Right to Work checks?

The procedure requires employers to request original documents, check their validity in the presence of the holder, make a copy of the documents, and keep the copy securely.