Manual “Right to Work” checks using Group 1, List B

A “Right to Work” check is a check that an employer can do to make sure an employee can legally work in the U.K.

The check should be done before an employee starts work.  Doing the check properly (and “follow-up” checks, as needed) means that the employee cannot be fined if it turns out the employee isn’t allowed to work in the U.K.

Asking an employee (or prospective employee) to show a document from Group 1, List B will establish a “statutory excuse”  from the employer having to pay a section 15 penalty  (for employing an illegal worker).

This “statutory excuse” will be time-limited — it will last for as long as the document(s) shown say that work is allowed.  The employer will have have to do a “follow-up” check when that permission runs out.

Who can use a “Group 1, List B” document

An employee (or prospective employee) can use a document (or combination of documents) from “Group 1, List B” if he or she —

• is not a British citizen or EEA / Swiss national

 — and he or she —

• has leave to stay and work in the U.K.
• is a family member of —
  • an EEA / Swiss national (not including British nationals)
  • a British citizen who was a “qualified person” or who got the “permanent right of residence” in another EEA state / Switzerland, and who has come back to live with them in the U.K. (known as the “Surinder Singh judgment” )

• has a derivative right of residence as —

  • the primary carer of a British citizen child or dependent adult (a “Zambrano” case ),
  • the primary carer of a self-sufficient EEA / Swiss national child (a “Chen” case )
  • the child of an EEA / Swiss national former worker where the child is in education in the U.K. (an “Ibrahim/Teixeira” case )
  • the primary carer of a child of an EEA / Swiss national former worker where the child is in education in the U.K. (an “Ibrahim/Teixeira” case )
  • the dependent child aged under 18 of a primary carer in one of the categories above

The term “EEA national” does not include British nationals, unless — with respect to a “family member” of a British citizen — a British citizen and that family member have lived together (in the past) in another EEA state or Switzerland, and have now come to live in the U.K. (under the “Surinder Singh judgment” )

Doing the “Right to Work” check

There are 3 steps to a manual right to work check:

1. Get original versions of one of the acceptable documents (or document combinations).
2. Check the document(s) in the presence of the person they belong to (they must be present in person or with a live video link).
3. Make clear copies of the document(s), and keep them safely (and a record of the date the check is made).

“Group 1, List B” documents

An employee (or prospective employee) needs to show one of the following documents (or document combinations) to prove their right to work in the U.K.:

1. 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. 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. 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. 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.

What to check

An employer needs to check that:

• the documents are genuine (see article 6(1)(a)) and original (see article 2), haven’t been tampered with, and belong to the person who has given them (see article 6(1)(e))
• photos are the same across all documents and look like the person (see article 6(1)(c))
• the person’s date of birth is the same across all documents, and is plausible, bearing in mind the person’s appearance (see article 6(1)(d))
• the person is allowed to do the type of work being offered (including any limit on the number of hours they can work) (see article 4(2))
• the dates for the person’s right to work in the U.K. haven’t expired (see article 4(2))
• for students who have limited permission to work during term-times — the employer sees evidence of the person’s term and vacation dates (see article 6(2)) for the course that they are taking
• if two documents give different names — the person has supporting documents showing why they’re different, such as a marriage certificate, divorce decree, or deed poll (see table 3 (“3-Step Check”) of the Code of Practice)

An employer must take all reasonable steps to check that the given documents are valid (see article 6(1)(a)), and belong to the person (see article 6(1)(e)).  This means that an employer may get a penalty if they’ve employed someone who turns out to be an illegal worker, and —

• it’s reasonably apparent that the document is false
• it’s reasonably apparent that the person isn’t the holder of the document given

The Code of Practice (Section 3, heading “Do you have a statutory excuse?”) makes clear that —

“The falsity [of a document] 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.”

Keeping proof

As an employer, you must make a clear copy of each document in a format which cannot later be altered, and then keep it (either electronically, e.g. as a PDF, or in hard-copy) (see articles 6(1)(f) and (g)).

You must also — at the same time — make a record of the date you checked each document (see article 6(1)(a)).  If this is recorded separately to the copy of the document, it should also include a description of the document checked (see table 3 (“3-Step Check”) of the Code of Practice).

You need to keep the copies you’ve made for the whole time your employee works for you, and then for a further 2 years after they stop working for you (see article 6(1)(b)).

When making copies of documents, you need to make a clear copy of —

• for passports — any page showing —

  • the person’s personal details (see article 6(1)(g)(ii)) (including nationality, date of birth, and biometric details)
  • the person’s photograph (see article 6(1)(g)(iii))
  • the person’s signature (see article 6(1)(g)(iv))
  • the document expiry date (see article 6(1)(g)(v))
  • information which says that the person has an entitlement to enter / remain in the U.K. and undertake the work in question (see article 6(1)(g)(vi)), including the leave expiry date
• for all other documents — the document in full (see article 6(1)(f)), including both sides of a Biometric Residence Permit/Card

Follow-up checks

A “statutory excuse” which comes from checking a document from Group 1, List B will last for as long as the document says the employee is allowed to work in the U.K. (see article 4(2)).

Before this time comes to an end, an employer can do another (“follow-up”) “Right to Work” check — extending their statutory excuse, and allowing the employee to carry on working for them.

How to do a follow-up check

The employer can do a follow-up “Right to Work” check using another (new) document from Group 1, List B, or it can use one of the other ways of doing a check (including an online check).

If the employee has no acceptable document because of an application / appeal / administrative review

If the employee’s permission to work in the U.K. has run out (according to their document(s)), and they don’t have another (new) acceptable document for a “Right to Work” check (and they aren’t willing or able to do an online check) — but the employer is “reasonably satisfied” that their employee has an outstanding application, appeal, or administrative review to vary or extend their leave in the U.K., then the time-limited statutory excuse will be extended for a further 28 days (see article 4(3)).  This is to enable the employer to verify whether the employee has permission to carry on working for them.

During this 28-day period the employer must contact the Employer Checking Service  and get a Positive Verification Notice confirming the employee still has the right to undertake the work in question.

If the employer gets a Positive Verification Notice their statutory excuse will last for a further six months from the date specified in their Notice.  They’ll then need to make a further check after that time.

If the employer gets a Negative Verification Notice, their statutory excuse will come to an end, and they should lay off their employee straightaway.