Code of Practice — “Right to Work” checks on employees
The current code of practice (below) — in force since 28th January 2019 — sets out —
- how employers should do “Right to Work” checks on (prospective) employees to ensure they’re not working illegally in the U.K.
- what penalties will be given to employers found to be employing illegal workers
Code of practice on preventing illegal working
Civil penalty scheme for employersJanuary 2019
(Laid in draft before Parliament in December 2018)
1: Introduction
Illegal working often results in abusive and exploitative behaviour, the mistreatment of illegal migrant workers, tax evasion and illegal housing conditions. It can also undercut legitimate businesses and have an adverse impact on the employment of people who are in the U.K. lawfully.
As an employer, you have a responsibility to prevent illegal working in the U.K. by ensuring that your employees have the right to work here. The illegal working provisions of the Immigration, Asylum and Nationality Act 2006
(‘the Act’) came into force on 29th February 2008. Section 15
- subject to immigration control; and
- aged over 16; and
not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the U.K. or because their leave to enter or remain in the U.K.:
- (i) is invalid;
- (ii) has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
- (iii) is subject to a condition preventing them from accepting the employment.
This Code of practice has been issued under section 19
This Code updates the one issued in May 2014. It has been updated to reflect the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
For whom is this Code of practice relevant?
This Code applies:
- (i) when calculating the penalty amount; in respect of any employment which commenced on or after 29th February 2008 where the breach of section 15
- (ii) when determining liability; where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28th January 2019 in order to establish or retain a statutory excuse.
When the employment commenced on or after 29th February 2008 and the breach occurred on or after 16th May 2014 and before 28th January 2019, the Code published in May 2014 applies.
When the employment commenced on or after 29th February 2008 and the breach occurred before 16th May 2014, the Code published in February 2008 applies.
This Code applies to employers who employ staff under a contract of employment (a contract of service or apprenticeship), whether express or implied and whether oral or in writing. It does not apply to those who undertake work for you who do not fall within these categories.
How should this Code of practice be used?
This Code has been issued under section 19
This Code has been issued alongside guidance for employers setting out how to conduct right to work checks and how the Home Office administers the scheme, and a ‘Code of practice on avoiding unlawful discrimination while preventing illegal working’. Please refer to this Code alongside these documents. They can be found at: http://www.gov.uk/government/collections/employers-illegal-working-penalties
Who should use this Code of practice?
This is a statutory Code. This means that it has been approved by the Secretary of State and laid before Parliament. The Code does not impose any legal duties on employers, nor is it an authoritative statement of the law; only the Courts and Employment Tribunals can provide that. However, the Code may be used as evidence in legal proceedings and Courts and Employment Tribunals must take account of any part of the Code which may be relevant. Home Office officials will also have regard to this Code when administering illegal working civil penalties under the Act.
References in this Code
- ‘We’ or ‘us’ in this Code mean the Home Office. References to ‘you’ and ‘your’ mean the employer.
- ‘Days’ means calendar days, i.e. including Saturdays, Sundays and bank holidays.
- ‘Employee’ means someone who is, or who will be, employed under a contract of employment (contract of service) or apprenticeship.
‘Breach’ or ‘breaches’ mean that section 15
- subject to immigration control; and
- aged over 16; and
not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the U.K. or because their leave to enter or remain in the U.K.:
- (i) is invalid;
- (ii) has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
- (iii) is subject to a condition preventing them from accepting the employment.
- A ‘current document’ means a document that has not expired.
- References to ‘right to work checks’ refer to prescribed manual document checks and prescribed online right to work checks.
- ‘Home Office online right to work checking service’ means the online system allowing employers to check whether a person is allowed to work in the U.K. and, if so, the nature of any restrictions on that person’s right to do so. For the avoidance of doubt, this system is accessible for employers on the ‘View a job applicant’s right to work details’ page
- An ‘online right to work check’ means the response generated by the Home Office online right to work checking service in relation to a person.
- A ‘civil penalty notice’ means a notice given under section 15(2)
- ‘Employment of illegal workers within the previous three years’ means you have been issued with a civil penalty or warning notice in respect of a breach of the Act for one or more illegal workers which occurred within three years of the current breach, or you have committed an offence under section 21
2: An overview of how the civil penalty will be administered
The civil penalty scheme is designed to encourage you to comply with your duty as an employer to prevent illegal working by carrying out right to work checks. The civil penalty scheme is applied as the sanction for employing illegal workers in most cases. The civil penalties we impose are intended to be proportionate to the level of non-compliant behaviour and are therefore calculated on a sliding scale. Criminal sanctions may be applied in the most serious cases.
Liability for a civil penalty
If you are found employing an illegal worker we may issue you with a notice informing you that the details of your case are being referred to officials with responsibility for administering the civil penalty scheme, to consider your liability for a civil penalty for breaching section 15
This referral notice will inform you how your case will be considered and the possible decision outcomes. It will also specify the date on which the breach was encountered. If you receive this referral notice, you are advised to consult the separate guidance issued by the Home Office which sets out in more detail how the civil penalty scheme will be administered, including the various documents that you may receive and the deadlines that are relevant to each stage of the process.
The separate guidance will also set out how and when you may exercise your right to object to the Home Office and appeal to a court against a civil penalty. You may object and appeal on the following grounds:
- you are not liable to pay the penalty (for example, this could be because you are not the employer of the illegal worker(s) identified);
- you have a statutory excuse (this means you undertook a prescribed right to work check); or
- the level of penalty is too high (this means we have miscalculated the amount of your penalty by reference to the wrong scale or you have evidence that you have met specified mitigating criteria which we have not taken into account).
In the event that we visit your business premises and you are able to demonstrate to officials at this time that you have a statutory excuse in respect of the identified illegal workers, you will not be served with a referral notice in respect of these employees. Instead, you will be served with a notice indicating that no action will be taken in your case and it will be closed. It will not be taken into account in the event that you breach the Act in future.
Fast payment option
We have a fast payment option which reduces the amount of your civil penalty by 30 per cent if we receive payment in full within 21 days of the date of the civil penalty notice. The reduced penalty amount and the final date by which you must pay it will be clearly shown on your civil penalty notice.
If you object to your penalty before the deadline specified in your civil penalty notice, you will continue to be eligible for the fast payment option. If you are still required to pay a penalty following your objection, you will be given a fresh notice which specifies a new date by which you may pay your penalty at the lower amount.
If you have been found to be employing illegal workers within the previous three years, you are not eligible for this reduced payment after the first penalty notice or offence.
Payment by instalments
We will consider the impact of the penalty on you insofar as you are unable to pay it in one lump sum. We may agree that you are able to pay your penalty by instalments over an agreed period of time, usually up to 24 months, and exceptionally up to 36 months. We will not reduce the penalty amount.
You must provide details of your ability to pay over the instalment plan period and why you cannot pay the penalty in full. This information should be supplied within 28 days of the civil penalty notice in order for your application to be considered. When we inform you of our decision, we will stipulate when the payment or payments are due. Your request to pay by instalments does not affect the time limits within which an objection or an appeal against the civil penalty must be brought.
In the event that you do not pay an instalment on the due date, debt recovery enforcement action will be taken.
A fast payment option may not be paid by instalments.
Enforcement and other consequences of a civil penalty
If you do not pay your penalty in full or by instalments, or object or appeal, by the specified due dates, we will commence enforcement action against you. This includes action in the civil court to recover the unpaid penalty. This action may have an adverse impact on your ability to act in the capacity of a director in a company.
If you are an employer who is subject to immigration control, you should also be aware that if you are liable for a civil penalty, this will be recorded on Home Office systems and may be taken into account when considering any future immigration application that you make.
If you are liable for a civil penalty, it could also affect your ability to sponsor migrants who come to the U.K. in the future, including those you wish to work for you under Tier 2 of the Points Based System, or to hold a Gangmaster licence.
The Act also provides, under section 21
3: Determining liability and calculating the penalty amount
When we consider your liability for a civil penalty, we will assess your case against published criteria contained in this Code. These are set out in the Consideration Framework below. It comprises three stages of consideration and explains how the level of breach is to be calculated.
Table 1: Consideration Framework
Stage 1: Determining liability Liability: Do you have a statutory excuse? Yes: Issue a no action notice. Case is closed. No: Proceed to Stage 2 Stage 2: Determining the level of breach Breach: Have you been found to be employing illegal workers within the previous three years? Yes: Proceed to Stage 3. Apply the Level 2 Civil Penalty Calculator No: Proceed to Stage 3. Apply the Level 1 Civil Penalty Calculator Stage 3: Determining the penalty amount Mitigating factor 1: Have you already reported the suspected illegal worker to the Home Office and received a unique reference number? Refer to the Civil Penalty Calculator (Table 2) Mitigating factor 2: Have you actively co-operated with the Home Office? Mitigating factor 3:
(This factor may be applied only where factors 1 and 2 have been met in relation to Level 1 penalties)Do you have effective right to work checking practices in place and generally comply with your employer duties to prevent illegal working? At stage 3, we determine the penalty amount. We do this by using the Civil Penalty Calculator (Table 2 below). This calculator sets out a sliding scale of penalty amounts for each illegal worker.
The actual penalty amount will depend on your history of compliance with right to work checks as an employer. It will be determined according to whether you qualify for reductions in the penalty amount by providing evidence that you have met the mitigating factors. Each case of illegal working is considered by officials on the basis of the information available, the Consideration Framework and the Civil Penalty Calculator.
Table 2: Civil Penalty Calculator
The Civil Penalty Calculator comprises two levels:
- The Level 1 table should be used where you have not been found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £ 15,000 before reductions are applied.
- The Level 2 table should be used where you have been found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £ 20,000 before reductions are applied.
Where a civil penalty notice has been cancelled following an objection or appeal and has not been replaced by a warning notice, it shall not be taken into account when calculating any subsequent penalty.
Level 1
Level 1: First breach → Starting maximum penalty amount £ 15,000 → Mitigating factor 1:
Evidence of reporting suspected illegal workers?→ Mitigating factor 2:
Evidence of active co-operation?→ Ending minimum penalty amount £ 5,000* Mitigating factor 3:
Evidence of effective right to work checking practices together with mitigation for factors 1 and 2→ If Yes Penalty decreased by £ 5,000 → If Yes Penalty decreased by £ 5,000 → If Yes Action: Issue a warning notice → If No No penalty decrease (£ 0) → If No No penalty decrease (£ 0) → If No Action: Issue a civil penalty notice for the total value calculated in each case * The ending minimum penalty amount may be reduced by 30% to £ 3,500 per illegal worker under our fast payment option.
Level 2
Level 2: Second or subsequent breach → Starting maximum penalty amount £ 20,000 → Mitigating factor 1: Evidence of reporting suspected illegal workers? → Mitigating factor 2: Evidence of active co-operation? → Ending minimum penalty amount £ 10,000 Action
↓Warning notice not available → If Yes Penalty decreased by £ 5,000 → If Yes Penalty decreased by £ 5,000 Issue a civil penalty notice for the total value calculated in each case → If No No penalty decrease (£ 0) → If No No penalty decrease (£ 0) The fast payment option is not available where you have been found to be employing illegal workers within the previous three years.
Do you have a statutory excuse?
In stage 1 of our consideration we will determine if you have a statutory excuse against liability for a civil penalty. You will have a statutory excuse if you have correctly carried out the prescribed right to work checks before employment commences.
Where an employee has a time-limited right to work, and you have therefore established a time-limited statutory excuse, you are required to conduct repeat right to work checks to retain the excuse. Generally, this will be when the employee’s permission to be in the U.K. and undertake the work in question expires, as evidenced by either the document (or combination of documents) produced or by the online right to work check.
It is your responsibility to demonstrate that you have complied with the requirements to establish and, where necessary, retain your statutory excuse.
You will not have a statutory excuse if:
- you cannot provide evidence of having conducted the prescribed right to work checks before the employment commenced;
- you have employed someone when it is reasonably apparent that they are not the holder of the document they present, or the person named and shown in the online right to work check (i.e. that person is an imposter);
- you have conducted a manual check and it is reasonably apparent that the document is false (the falsity would be considered to be ‘reasonably apparent’ if an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine);
- you have conducted an online check and it is reasonably apparent that the website you have used to do that check is not the official gov.uk Home Office online right to work checking service;
- you have attempted to conduct an online check but have not accessed the employer ‘View a job applicant’s right to work details’
- you have employed someone when it is clear from the right to work check that the person does not have valid permission to work in the U.K. or is subject to an immigration condition which prevents them from carrying out the work in question (i.e. you have employed a person with no right to work or a person in breach of their work restrictions or a person whose right to work has expired);
- you know you are employing a person who is not allowed to undertake the work regardless of whether you have carried out any document checks;
- your statutory excuse was time-limited and has expired; or
- in respect of a student who has a restricted right to work, you have not obtained and retained a copy of evidence setting out their term and vacation times covering the duration of their period of study in the U.K.
If we are satisfied that you have a statutory excuse in respect of an illegal worker, you will not be liable for a civil penalty.
But if we consider that you have not established a statutory excuse in respect of an illegal worker we will consider the level of your civil penalty. Please see stage 2 in the Consideration Framework.
Have you been found to be employing an illegal worker before?
During stage 2 of our consideration process we will look at whether you have been found to be employing illegal workers within the previous three years. We will do this to determine the level of your breach, as this will be taken into account and a higher starting level of penalty will apply. We will then use Level 2 of our Civil Penalty Calculator to determine the amount of your civil penalty.
If you have not received a civil penalty or warning notice or committed an offence under section 21
Multiple premises
A business with more than one premises which has been found to be employing illegal workers within the previous three years and where recruitment is devolved to each site, will not be subject to a penalty calculation using Level 2 of the Civil Penalty Calculator if illegal workers are encountered at different sites, unless this can be attributed to a general failure in the business’s centrally set recruitment practices.
Transfer of undertakings
Employers who acquire staff as a result of a Transfer of Undertakings (Protection of Employment) Regulations 2006
This 60-day grace period applies in all situations where the new employer acquires employees who are subject to a “relevant transfer” (as defined by regulation 3
This means that in all circumstances where employees assigned to a business, or part of a business, that is the subject of a relevant transfer move with that work to a new employer, the new employer has 60 days from the date of the relevant transfer to carry out fresh right to work checks on those employees, even if regulation 8(7)
By complying with prescribed right to work checks within this timescale, the transferee employer will acquire a statutory excuse against liability for a civil penalty in the event that illegal working is identified.
Do you have mitigating evidence?
In stage 3 of our consideration we will assess whether any of the published mitigating factors apply in your case when determining the amount of your penalty. Depending on the level of your breach, there are up to three mitigating factors which may be taken into account:
(1) Have you reported suspected illegal workers to us?
If you demonstrate that you have reported to us your suspicion about the right to work of one or more illegal workers who have been identified and received an acknowledgement in the form of a unique Home Office reference number, your penalty amount for each of these illegal workers will be reduced by £ 5,000. To qualify for this reduction you must have reported your suspicion about them to our Sponsorship and Employers’ Helpline on 0300 123 5434 before we identify the illegal worker. This mitigating factor is taken into account for both Level 1 and Level 2 breaches.
(2) Have you actively co-operated with us?
If you demonstrate that you have actively co-operated with us when we investigate your compliance with the law, your penalty amount for each illegal worker will also be reduced by £ 5,000.
Active co-operation means:
- providing Home Office officials with access to your premises, recruitment and employment records and right to work checking systems when requested;
- responding promptly, honestly and accurately to questions asked during Immigration Enforcement visits and responding to any further requests for information by the deadline set;
- making yourself available to our officials during the course of our investigations if required; and
- fully and promptly disclosing any evidence you have which may assist us in our investigations.
This mitigating factor is taken into account for both Level 1 and Level 2 breaches.
(3) Do you have effective right to work checking practices in place?
If you demonstrate that you have effective recruitment practices in place together with evidence that you have reported your suspicion about the illegal worker(s) in question and actively co-operated with us, your penalty will be reduced to the minimum level of a warning notice. This will only apply if you have not been found to be employing illegal workers within the previous three years. A warning notice will be taken into account in determining the level of your penalty if you commit a subsequent breach of the Act within the following three years.
We will consider that you have effective right to work checking practices in place if you provide evidence of your general compliance with your responsibility to prevent illegal working. This includes:
- having robust document checking systems in place;
- thorough and consistent right to work checking processes;
- records of right to work checks for your staff; and
- a history of compliance with the requirements.
4: How to conduct a right to work check
Since 28th January 2019, employers have had the option to conduct either a manual right to work check or an online right to work check in order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally.
It will not be possible to conduct an online right to work check in all circumstances, as not all employees, or prospective employees, will have an immigration status that can be checked online at this stage. The Home Office online right to work checking service sets out what information and/or documentation you will need in order to access the service. In circumstances in which an online check is not possible in respect of an individual, you should conduct a manual right to work check.
When conducting follow-up checks required in respect of those whose right to work is time-limited, you may use either the manual right to work check or the online right to work check where applicable.
Conducting a manual right to work check
There are 3 basic steps to conducting a manual right to work check:
- Obtain original versions of one or more of the acceptable documents;
- Check the documents in the presence of the holder of the documents (the person must be present in person or via a live video link); and
- Make copies of the documents, retain the copies and a record of the date on which the check is made.
Table 3: 3-Step Check
→ Step 1: Obtain → Step 1: Obtain Step 3: Copy You must obtain original acceptable documents. You must check that they are genuine, that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering. You must make a clear copy of each document in a format which cannot later be altered, and retain the copy securely: electronically or in hardcopy. You must also make a contemporaneous record of the date on which you conducted your check. If this is recorded separately to the copy documents, it should also include a description of the documents checked. How: You must ask for and be given original documents from either List A or List B of acceptable documents. How: You must check:
- photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
- expiry dates for leave have not passed;
- any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the U.K. for which they will be employed);
- the documents are genuine, have not been tampered with and belong to the holder; and
- the reasons for any different names across documents (e.g. marriage certificate, divorce decree, deed poll). Supporting documents should also be photocopied and the copy retained.
How: You must copy and retain:
- Passports: any page with the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the U.K. and undertake the work in question.
- All other documents: the document in full, including both sides of a Biometric Residence Permit.
All copies of documents taken should be kept securely for the duration of the employee’s employment and for two years afterwards.
Lists of acceptable documents for right to work checks
The documents that are considered acceptable for demonstrating right to work in the U.K. are set out in two lists — List A and List B. These are shown in Tables 4 and 5 below.
List A contains the range of documents which may be accepted for checking purposes for a person who has a permanent right to work in the U.K. If you follow the prescribed right to work checks you will establish a continuous statutory excuse for the duration of that person’s employment with you.
List B contains the range of documents which may be accepted for checking purposes for a person who has a temporary right to work in the U.K. If you follow the prescribed right to work checks, you will establish a time-limited statutory excuse. You will be required to carry out a follow-up check as set out below.
Table 4: List A — Acceptable documents to establish a continuous statutory excuse
List A 1. A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the U.K. and Colonies having the right of abode in the U.K. 2. A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of a EEA country or Switzerland. 3. A registration certificate or document certifying permanent residence issued by the Home Office to a national of a EEA country or Switzerland. 4. A permanent residence card issued by the Home Office to the family member of a national of a EEA country or Switzerland. 5. A current biometric immigration document issued by the Home Office to the holder which indicates that the person named in it is allowed to stay indefinitely in the U.K., or has no time limit on their stay in the U.K. 6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the U.K., has the right of abode in the U.K., or has no time limit on their stay in the U.K. 7. A current immigration status document issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the U.K. or has no time limit on their stay in the U.K., together with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer. 8. A birth or adoption certificate issued in the U.K., together with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer. 9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer. 10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer. Table 5: List B — Acceptable documents to establish a statutory excuse for a limited period of time
List B Group 1 — Documents where a time-limited statutory excuse lasts until the expiry date of leave 1. A current passport endorsed to show that the holder is allowed to stay in the U.K. and is allowed to do the type of work in question. 2. A current biometric immigration document issued by the Home Office to the holder which indicates that the person named in it is allowed to stay in the U.K. and is allowed to do the work in question. 3. A current residence card (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is a family member of a national of an EEA country or Switzerland or who has a derivative right of residence. 4. A current immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the U.K. and is allowed to do the work in question, together with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or previous employer. Group 2 — Documents where a time-limited statutory excuse lasts for 6 months 1. A certificate of application issued by the Home Office under regulation 18(3) 2. An application registration card 3. A Positive Verification Notice issued by the Home Office Employer Checking Service A ‘Positive Verification Notice’ is official correspondence from the Home Office Employer Checking Service
Follow-up right to work checks
If you conduct the prescribed right to work checks, you will establish a statutory excuse as follows:
In List A: your statutory excuse will be for the whole duration of your employee’s employment with you because there are no restrictions on their permission to be in the U.K. You do not have to repeat the right to work check.
In List B: your statutory excuse will be limited because your employee has restrictions on their permission to be in the U.K. and to do the work in question. In order to retain your excuse, you must undertake follow-up right to work checks as follows:
Group 1 documents:
- If your employee is able to produce a current document in this list, you should make a follow-up check using this document. Your time-limited statutory excuse will continue for as long as your employee has permission to be in the U.K. and do the work in question, as evidenced by the document, or combination of documents, your employee produced for the right to work check.
- If, however, at the point that permission expires, you are reasonably satisfied that your employee has an outstanding application or appeal to vary or extend their leave in the U.K., your time-limited statutory excuse will continue from the expiry date of your employee’s permission for a further period of up to 28 days. This is to enable you to verify whether the employee has permission to continue working for you.
- During this 28-day period you must contact the Employer Checking Service
- In the event that you receive a Positive Verification Notice your statutory excuse will last for a further six months from the date specified in your Notice. You will then need to make a further check upon its expiry.
- In the event that you receive a Negative Verification Notice, your statutory excuse will be terminated.
An application or appeal must be made on or before a person’s permission to be in the U.K. and do the work in question expires in order to be deemed ‘in-time’ and valid. In the event that you receive a Negative Verification Notice from the Employer Checking ServiceA ‘Negative Verification Notice’ is official correspondence from the Home Office Employer Checking Service
Group 2 documents:
- If your prospective employee or employee holds one of the documents in Group 2, or is unable to present an acceptable document because they have an outstanding application, appeal, or administrative review with the Home Office in respect of their leave, you must contact the Employer Checking Service
Conducting an online right to work check
With effect from 28th January 2019, you may choose to conduct an online right to work check to establish a statutory excuse against a civil penalty in the event of illegal working. You can do this by accessing the Home Office online right to work checking service. Not all employees, or prospective employees, will have an immigration status that can be checked online.
You must access the service using the employer page on gov.uk, entitled ‘View a job applicant’s right to work details’
There are three basic steps to conducting an online right to work check:
- use the Home Office online right to work checking service (the ‘View a job applicant’s right to work details’ page
- satisfy yourself that any photograph on the online right to work check is of the individual presenting themselves for work; and
- retain a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.
If the online right to work check does not confirm that the individual has the right to work in the U.K. and to do the work in question, you will not have a statutory excuse from this check if you proceed to employ them. If you know, or have reasonable cause to believe that they do not have the right to work, and employ them anyway, you risk being found guilty of a criminal offence.
If you are unable to conduct an online check because the individual has an outstanding application, appeal, or administrative review with the Home Office in respect of their leave, you must contact the Employer Checking Service
Additional requirement for students
For students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the U.K. for which they will be employed.
Follow-up right to work checks
Conducting the online right to work check as prescribed above will provide you with a statutory excuse for the period for which the online right to work check confirmed that the person named in it is permitted to carry out the work in question. You must conduct the check before employment commences in order to have a statutory excuse.
Where an employee has a time-limited right to work, and you have therefore established a time-limited statutory excuse, you are required to do a follow-up right to work check at the point that permission is due to end in order to retain a statutory excuse.
Older versions of the code of practice
| Title | In force | ||
|---|---|---|---|
 |
2014 Code of practice | Code of practice on preventing illegal working: Civil penalty scheme for employers | 16th May 2014 — 27th January 2019 |
|
2008 Code of practice | Civil Penalties for Employers | 29th February 2008 — 15th May 2014 |
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