Right to Work – Key Concepts and Definitions 

Understanding Right to Work: Key Concepts and Definitions in the UK 

When thinking about the United Kingdom’s workforce, checks called ‘Right to Work’ are integral. At MyVetting.com, we’re experts in what Right to Work checks are and what they can mean for you and your company, or your career if you’re starting out in a new role.  In the simplest terms, Right to Work checks are in place to keep everyone safe, from your clients and customers to your wider team and the public. Right to Work checks must be completed and so it can help to understand a little more about them and why you’re helping keep everyone safe.  

Right to Work checks are intrinsically connected with immigration status, document verification, employer responsibilities, and employee rights. We’ll give you an overview. 

What is the Right to Work? 

Defining the Right to Work 

In the UK, the ‘Right to Work’ refers to an individual’s legal entitlement to work and reside within the country, subject to certain conditions and restrictions. This entitlement is directly linked to a person’s immigration status and is fundamental to the UK’s immigration and employment laws. 

Why the Right to Work is Essential  

For Individuals:  

For individuals, Right to Work is universally significant, but it is especially pertinent for immigrants or foreign nationals residing in the UK. Granting them the legal privilege to seek employment, earn a livelihood, and contribute to society, without this right, they may face barriers to employment, limited access to essential services and they even risk deportation. 

For Employers:  

Employers are equally bound by Right to Work checks. Essential for employers to recruit employees that can legally work in the UK, failure to do so can result in severe legal consequences, including fines and criminal charges. Understanding and complying with right to work regulations is essential for employers to maintain a legally compliant workforce. 

Legal Framework Governing the Right to Work in the UK 

The legal framework governing the Right to Work in the UK primarily revolves around the Immigration Act 1971 and subsequent amendments. Under this legislation, individuals who are not British citizens must possess specific immigration statuses that allows them to legally work and reside in the country. These immigration statuses include but are not limited to: 

British Citizens: British citizens have an unrestricted Right to Work in the UK. 

Indefinite Leave to Remain (ILR): Individuals with ILR, also known as settled status, can work and reside in the UK without any time restrictions. 

Visa Holders: Foreign nationals holding various types of visas, such as Tier 2 (General) or Tier 5 (Temporary Worker) visas, are granted the Right to Work for the duration specified in their visas. 

European Union (EU) and European Economic Area (EEA) Citizens: Prior to Brexit, citizens of EU and EEA countries had the right to work in the UK. Post-Brexit, new regulations apply, and they may need to apply for settled status or other immigration permissions. 

Understanding these definitions and distinctions is important both for individuals seeking employment and employers looking to hire a diverse workforce.  

 Who Has the Right to Work in the UK? 

 Qualifying for the Right to Work in the UK 

The Right to Work in the United Kingdom is not uniform for all individuals; eligibility depends on immigration status.  

Across the different groups – British Citizens, those with Indefinite Leave to Remain (ILR), certain Visa holders, including Tier 2 and Tier 5 visa holders, European Union (EU) and European Economic Area (EEA) Citizens, differences do exist between these groups. 

Prior to Brexit, citizens of EU and EEA countries had the right to live and work in the UK without specific visas or work permits. However, since Brexit, new regulations apply. EU and EEA citizens may need to apply for settled status or other immigration permissions to maintain their Right to Work in the UK. 

 Exceptions and Special Cases 

There are certain exceptions and special cases that may affect an individual’s Right to Work status in the UK: 

Asylum Seekers: Asylum seekers are not usually permitted to work while their claims are being processed. However, some may obtain permission to work in specific circumstances. 

Dependents: The Right to Work may differ for dependents of visa holders, and eligibility can vary depending on the primary visa holder’s status. 

Seasonal Workers: Seasonal agricultural workers may have unique work permits and eligibility criteria. 

Students: International students may have restricted work hours during term time, but they can work full-time during vacations. 

Family Members: Eligibility for the Right to Work can be tied to the immigration status of a family member. 

Individuals must understand their specific immigration status and any associated work permissions. Employers must also be diligent in verifying their employees’ Right to Work to avoid legal issues.  

 Verification of the Right to Work 

Importance of Verifying an Individual’s Right to Work 

Verifying an individual’s Right to Work in the UK is a critical step for employers, and it holds immense importance for several reasons: 

• Legal Compliance: Employers have a legal obligation to ensure that their employees have the Right to Work in the UK. Failure to do so can result in severe penalties, including fines and potential criminal charges. 
• Avoiding Penalties: The penalties for hiring individuals without the Right to Work can be substantial. Employers may face fines of up to £20,000 per illegal worker, and in serious cases, imprisonment. Verifying the Right to Work helps employers avoid these penalties. 
• Protecting Reputations: Hiring individuals without the Right to Work can damage an employer’s reputation and lead to negative publicity. It can also harm relationships with government authorities and regulatory bodies
• Ensuring a Legally Compliant Workforce: Verifying the Right to Work helps maintain a legally compliant workforce, which is crucial for business operations and growth. 
• Penalties for Employers Who Hire Individuals Without the Right to Work Employers who hire individuals without the Right to Work in the UK can face severe consequences, including: 
• Civil Penalties: The most common penalty is a civil penalty, which can result in fines of up to £20,000 per illegal worker. The actual amount can vary depending on the circumstances.
• Criminal Charges: In cases of deliberate and repeated non-compliance, employers may face criminal charges. This can lead to imprisonment and more substantial fines.
• Loss of Sponsorship License: Employers who hold a sponsorship license for hiring workers from outside the UK may have their license revoked if they repeatedly hire illegal workers.
• Business Closure: In extreme cases of non-compliance, the authorities may consider shutting down the business.
• Reputational Damage: Beyond legal penalties, hiring illegal workers can result in reputational damage and loss of trust among customers, clients, and partners.
   

Guidance on How Employers Can Conduct Right to Work Checks 

To conduct Right to Work checks effectively and remain in compliance with the law, employers can follow these steps: 

Obtain the Right Documents:
Ask employees to provide original and valid documents that prove their Right to Work in the UK. Common documents include passports, visas, biometric residence permits, and identity cards. 

Check Documents in Person:
Examine the documents in person, ensuring they are genuine, unaltered, and belong to the individual presenting them. Look for expiry dates and work entitlements. 

Keep Records:
Make clear copies of the documents and keep records of the checks, including dates and any follow-up actions taken. 

Regular Checks:
If an employee has a time-limited Right to Work (e.g., a visa), conduct follow-up checks to ensure their continued eligibility. 

Non-Discrimination:
Treat all employees and job applicants fairly and without discrimination. Avoid making assumptions about an individual’s right to work based on their appearance or nationality. 

Training and Guidance:
Ensure that staff responsible for conducting Right to Work checks are trained and familiar with the latest regulations and document types. 

Stay Informed: Keep up to date with changes in immigration and employment law to ensure compliance with evolving regulations. 

Documents and Definition

Common Documents That Prove the Right to Work 

When verifying an individual’s Right to Work in the UK, employers should look for specific documents that establish the legal entitlement to work.

Common documents include: 

• Passport: A valid and unexpired passport is one of the primary documents that prove an individual’s Right to Work. 
• Biometric Residence Permit (BRP): A BRP is a residence permit that contains an individual’s biometric information, including fingerprints and a photograph. It serves as proof of immigration status and Right to Work for non-EEA nationals in the UK. 
• Visas: Various types of visas, such as the Tier 2 (General) or Tier 5 (Temporary Worker) visas, may grant the Right to Work for specific durations. Employers should check the visa’s conditions to verify the individual’s eligibility to work. 
• Identity Cards: An identity card is an official document issued by some countries that may include an individual’s name, photograph, and other identifying information. It can be used to establish identity and, in some cases, Right to Work. 
• Residence Permits: A residence permit is an official document issued to foreign nationals residing in the UK, confirming their legal right to live and, in many cases, work in the country.  
• Certificate of Application: Individuals awaiting a decision on their immigration status may have a Certificate of Application or a Temporary Immigration Status Document, which can serve as temporary proof of the Right to Work. 
• Temporary Immigration Status Document: Like a Certificate of Application, this document is issued to individuals who have made certain immigration applications. It provides temporary proof of their Right to Work while awaiting a decision. 

Employers should verify that the documents presented are genuine, valid, and appropriate for the individual’s specific immigration status. 

Temporary Workers and Visas 

Temporary workers play a vital role in the UK’s labour market, filling short-term and specific job vacancies. To legally work in the UK as a temporary worker, individuals often need specific visas that grant them the Right to Work for a limited duration.  

Tier 2 (General) Visa: The Tier 2 (General) visa is designed for skilled workers coming to the UK with a job offer. It is often used by individuals who intend to work in the UK for an extended period. Key points include: 

• The employer must hold a sponsorship license. 
• Applicants must meet specific skill and salary requirements. 
• The visa typically allows individuals to work for the sponsoring employer for the duration specified on the visa. 

Tier 5 (Temporary Worker) Visa: The Tier 5 (Temporary Worker) visa is for individuals coming to the UK for short-term work assignments or specific purposes. It includes several subcategories, such as: 

• Tier 5 (Creative and Sporting) Visa: For individuals involved in creative or sporting events. 
• Tier 5 (Youth Mobility Scheme) Visa: Available to young people from certain countries, allowing them to work and travel in the UK for up to two years. 
• Tier 5 (Charity Worker) Visa: For individuals working for charitable organisations. 
• Tier 5 (Government Authorised Exchange) Visa: Covers various categories like international agreements, research, and training programs. 

 The duration of stay and work entitlement varies depending on the specific subcategory. 

 Seasonal Worker Scheme: 

The Seasonal Worker Scheme allows agricultural workers to come to the UK temporarily for seasonal employment. It is designed to address labour shortages in the agriculture sector. Workers under this scheme receive a visa that permits them to work for a specific period. 

Intra-Company Transfer (ICT) Visa: 

The ICT visa allows employees of multinational companies to transfer to a UK branch or subsidiary for a limited period. It is commonly used for skilled workers who need to work in the UK temporarily within their organisation. 

Recent Changes or Updates to Visa Regulations 

Immigration regulations and visa categories can undergo changes over time, depending on government policies and global events.  

 Recent updates in September 2021, include: 

Brexit: The UK officially left the European Union (EU) on January 31, 2020, and the transition period ended on December 31, 2020. This has resulted in significant changes to immigration rules for EU and European Economic Area (EEA) citizens. 

Points-Based Immigration System: The UK introduced a points-based immigration system, which applies to most work visas. Points are awarded based on factors such as skills, qualifications, and job offer. 

COVID-19 Pandemic: The COVID-19 pandemic has led to temporary changes in immigration rules, including visa extensions for individuals unable to leave the UK due to travel restrictions. These may be at an end. Please check the Home Office site. 

Shortage Occupation List: The Shortage Occupation List is periodically updated, affecting visa eligibility for specific occupations. 

Immigration regulations can change frequently, and it is essential to refer to official government websites for the most up-to-date information on UK visa regulations, especially if you are considering temporary work in the UK or hiring temporary workers. 

Employer Responsibilities 

Responsibilities of Employers Regarding Right to Work Checks 

Employers in the UK have specific responsibilities when it comes to conducting Right to Work checks on their employees.

These responsibilities include: 

• Verification of Documents: Employers must verify the authenticity and validity of the documents presented by employees as proof of their Right to Work in the UK. This involves checking that the documents are genuine, unaltered, and belong to the individual presenting them. 
• Checking Expiry Dates: Employers must ensure that documents allowing an employee to work in the UK, such as visas or residence permits, have not expired. 
• Record Keeping: Employers should maintain clear and accurate records of the Right to Work checks they have conducted. This includes copies of the documents checked and the date of the checks. 
• Follow-Up Checks: If an employee has a time-limited Right to Work, employers must conduct follow-up checks before the expiry of the employee’s permission to work. 
• Non-Discrimination: Employers should treat all employees and job applicants fairly and without discrimination. Avoid making assumptions about an individual’s right to work based on their appearance, nationality, or ethnicity. 

Tips for Employers to Stay Compliant with the Law 

To stay compliant with UK immigration laws and regulations, employers can follow these tips: 

• Training and Awareness: Ensure that staff responsible for conducting Right to Work checks are trained and familiar with the latest regulations and document types. 
• Regular Audits: Conduct regular audits of your workforce’s Right to Work documentation to identify any issues or upcoming expiry dates. 
• Use the Home Office Guidance: Refer to the Home Office’s official guidance on Right to Work checks for up-to-date information and best practices. 
• Seek Legal Advice: If you are uncertain about an individual’s Right to Work status or how to conduct proper checks, seek legal advice or consult with immigration experts. 
• Stay Informed: Keep abreast of changes in immigration and employment law, as regulations can change frequently. 
• Document Retention: Maintain records of Right to Work checks for the duration of the employee’s employment and for two years following their departure. 
• Implement Clear Policies: Establish clear company policies and procedures for conducting Right to Work checks and ensure that all employees are aware of and follow these policies. 

By adhering to these responsibilities and best practices, employers can reduce the risk of non-compliance and its associated consequences while maintaining a legally compliant workforce. 

Employee Rights – Rights and Protections Concerning Right to Work 

Employees in the UK have important rights and protections regarding their Right to Work. These rights include: 

• Non-Discrimination: Employers are prohibited from discriminating against employees based on their nationality, ethnicity, or immigration status. All employees have the right to equal treatment and opportunities in the workplace. 
• Right to Work Checks: Employees have the right to be asked for specific documents to prove their Right to Work, if these checks are conducted fairly and consistently for all employees. 
• Data Protection: Employees’ personal information, including documents provided for Right to Work checks, should be handled in accordance with data protection laws to safeguard their privacy. 
• Whistleblower Protection: Employees who report workplace issues related to Right to Work, such as concerns about illegal employment practices or discrimination, are protected by whistleblower laws. Employers cannot retaliate against employees for making such reports. 
• Right to Resign: If an employee’s immigration status changes, or if they face issues related to their Right to Work, they have the right to resign from their employment without facing contractual penalties. 
• Legal Rights of Redress: Employees have the legal right to take their employers to employment tribunals or courts if they believe their Right to Work has been unlawfully restricted or if they face discrimination. 

Reporting Workplace Issues Related to Right to Work 

Employees who encounter workplace issues related to their Right to Work can take several steps to address them. These include discussion with employer and the HR department, whistleblowing, seeking legal advice and contacting Government Authorities, such as the Home Office or the Equality and Human Rights Commission (EHRC) to report discrimination or illegal employment practices. 

Understanding the Right to Work in the United Kingdom is of paramount importance for both employers and employees, with the implications of getting it wrong catastrophic for businesses and individuals.