What to Do if a Candidate Has No Documents to Prove Right to Work in the UK

Hiring new staff is an exciting time for any business, but it also comes with legal responsibilities. Conducting right to work checks on your potential candidates is one of the most important responsibilities for business owners and HR professionals. Every employee must be legally permitted to work in the UK and so must be able to prove right to work.  

However, what do you do if your candidate is the right person for the job but doesn’t have the documents needed to prove their right to work?  

Let’s review your options to help you understand the steps you need to take if a candidate cannot provide the required documents. 

Understanding the Right to Work 

UK law states that all employers have to check that their employees have the right to work in the UK before they can begin their term of employment. The right to work is verified by undertaking an online Right to Work check with a provider, like MyVetting.

The checks require specific documents to be checked. These include a passport or a Biometric Residence Permit and online Right to Work checks can be carried out digitally on MyVetting, as we are a Home-Office approved user of IDVT.  

Failing to carry out right to work checks can lead to serious consequences, including fines of up to £60,000 per illegal worker, as well as potential criminal liability for an employer. It’s important to understand what steps to take if your candidate cannot present the documentation necessary. 

Reasons Why a Candidate Might Not Have Documents 

There may be several reasons why a candidate may not be able to provide proof of their right to work in the UK: 

• They may have lost their original documents 

• They may be in the process of applying for a visa  

• They may be in the process of applying for immigration status. 

• They could be waiting for the Home Office to return their documents following a visa extension or settlement application. 

• Personal circumstances may prevent them from providing documentation or may have never required documentation, such as a passport. 

• They may not be aware of right to work checks or understand that they may need to provide documentation. 

These situations may prove challenging. However, it is vital to treat each candidate’s case individually and carefully, as turning down a candidate solely based on their inability to present documents may lead to claims of discrimination. 

What to do When Documents Are Missing 

Use a Share Code to prove Right to Work 

If a candidate does not have the original documents but has made an application to the Home Office for leave to remain, you may still be able to confirm their right to work – if the candidate can supply you with a share code. This can be especially helpful if a candidate is waiting for a decision on their immigration application. 

You should request: 

• The candidate’s share code 

• The candidate’s date of birth. 

While the share code itself is not evidence, the online verification, obtained via the right to work service online, is the evidence of their right to work

Obtain a Positive Verification Notice (PVN) 

If the candidate has no documents because their application is with the Home Office, you can request a Positive Verification Notice (PVN) from the Home Office Employer Checking Service. This will confirm whether the candidate has the right to work while their application is being processed. 

• You will need to fill out an Employer Checking Service request form with details of the candidate and their application reference number. 
• If the candidate has the right to work, the Home Office will issue a PVN, which will provide you with a statutory excuse against liability for employing an illegal worker for six months. During this time, you will need to perform follow-up checks if required. 

Ask for Other Acceptable Documents 

The Home Office provides a list of acceptable documents that can be used to prove the right to work in the UK. If the candidate cannot provide a passport or Biometric Residence Permit, they may still have other documents that prove their status. Examples include: 

• A certificate of application or immigration status document issued by the Home Office. 

• A full UK birth certificate and evidence of their National Insurance number. 

Please consult the list of acceptable documents to verify if any alternative evidence can be provided. 

Please note: Biometric residence permits are being phased out, with an e-visa being introduced by December 2024. It will still be possible to use the view and prove service online for right to work checks, but will no longer be issued a physical biometrics residence permit card.

Handling the Situation with Sensitivity 

When a candidate does not have the necessary documents, it is important to handle the situation with care and sensitivity. Avoid making assumptions about their immigration status, and make sure you give the candidate a reasonable opportunity to provide alternative documentation or allow them to obtain proof from the Home Office. 

Make it clear that it is a legal requirement, and explain the steps that need to be taken to verify their right to work. Communication is key – ensure that the candidate knows that you are able to support them through the process. This can help to address any anxiety or frustration they may feel. 

Avoiding Discrimination 

As an employer, it is essential that you treat all candidates fairly and consistently when undertaking right to work checks for potential employees, regardless of their nationality or background. Refusing to consider a candidate because they cannot immediately present documents may be considered discriminatory, particularly if they are in the process of applying to the Home Office for their status. 

Ensure that you apply the same process to all candidates and document all steps taken to verify the right to work, as this will demonstrate that you have followed a fair and consistent approach. 

Conclusion 

If a candidate does not have documents to prove their right to work in the UK, it doesn’t necessarily mean they cannot be employed. By obtaining a Positive Verification Notice or share code, you can verify the candidate’s status while ensuring compliance with legal requirements. 

Handling the situation with sensitivity and fairness, and ensuring that you apply the same standards to all candidates, will help prevent discrimination and build a positive recruitment experience. By following these steps, you can ensure that your hiring process is compliant, transparent, and supportive, even in situations where proof of right to work is not immediately available.