Nikki Weir discusses her top ten tips on how to conduct right to work checks.
  1. Carry out checks for all new employees.
    It is a common misconception that right to work checks apply only to foreign migrants. They should be carried out for all new employees. It can be risky to assume that someone has a right to work.
  2. Timing is key
    You should ensure that checks are carried out before the employee starts working for you. It is good practice to offer a role subject to the candidate having a right to work and to carry out checks before the candidate starts working.
  3. You may have an option as to whether to carry out manual or online checks.
    Most employers will be used to carrying out manual checks. From 2019 it has been possible to carry out online checks using the Home Office ‘View a job applicant’s right to work details’ service and a code provided by the prospective employee. The online service is not available for every migrant and you should not discriminate against a migrant who does not provide a code. If you cannot carry out an online check, you should carry out a standard manual check.
  4. When carrying out a manual check, you must see the original ID document.
    It is often assumed that a scanned ID document is acceptable, however under normal circumstances the Home Office expect you to have sight of the original document which you should examine for any signs that it has been tampered with or is not authentic. During the COVID-19 pandemic, scanned documents are acceptable as a temporary measure but originals should be seen once this concession is lifted.
  5. You should conduct checks in the presence of the candidate.
    The onus is on the employer to examine the ID document or ID photo on the online check. You should take your time and check that the person on the ID is the same person in front of you. When in doubt, ask questions. If you have concerns about potential discrimination issues arising, seek specialist advice.  It should be noted that this can be done via video call during the pandemic.
  6. Ask for additional documents to link the candidate to their ID if necessary.
    If the candidate provides an ID document in a different name to that which they are being employed under, the onus is on the employer to be satisfied that they are one and the same person. The most common issue arises when a candidate goes by a married name, but may come from a country where this is not routinely updated in their passport. In that situation, you should ask for sight of the marriage certificate and retain a copy on your records. If in doubt, seek specialist advice.
  7. Make sure you carry out follow up checks.
    Where a migrant’s right to work is time limited, you must ensure that follow up checks are carried out to verify their ongoing right to work. It is common for visa extension applications to be submitted prior to expiry of existing leave but no decision is made prior to the visa end date. In such cases, the migrant’s leave will usually have been preserved in accordance with Section 3C of the Immigration Act 1971. You can verify this using the Employer Checking Service.
  8. Prepare for changes in 2021 for EEA nationals who have not yet demonstrated settled status.
    During the Brexit transition period (until 31 December 2020), an EEA passport continues to be sufficient evidence of right to work. It is good practice to encourage employees to register with the EU Settlement Scheme, but this is not currently mandatory. Those in the UK by the end of 2020 will have until June 2021 to register. Anyone who does not register or who relocates to the UK from 2021 will require a visa to work in the UK.
  9. Make sure you retain documents for the required time period.
    You should retain evidence of having carried out right to work checks for the duration of a person’s employment and for a further two years after they stop working for you. The documents can be retained in hard or digital format and should be readily accessible should the Home Office request sight of them.
  10. Use the Home Office checklist
    This is available on the Home Office website and sets out a list of each step of the checks and acceptable documents.  It is a really useful tool to ensure you are complying with your duties as an employer for the prevention of illegal working.
Related Expertise
Employment