Manual “Right to Work” checks using Group 2, 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 2, 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 6 months from the date of the “Positive Verification Notice” which is issued.  The employer will have have to do a “follow-up” check when that time runs out.

Who can use a “Group 2, List B” document

An employee (or prospective employee) can use a document (or combination of documents) from “Group 2, List B” if he or she —

• is not a British citizen or EEA / Swiss national

 — and he or she —

• has made an application for a Residence Card as 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 made an application for a Derivative Residence Card by having 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
• has claimed asylum in the U.K.
• is a dependant of someone who has claimed asylum in the U.K.
• has leave to stay and work in the U.K. but has no acceptable document to prove it

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).

If the (prospective) employee has leave to stay and work in the U.K. but has no suitable document to prove it, then technically speaking he or she will have no “acceptable document”.  The employer just has to get a Positive Verification Notice from the Employer Checking Service , and keep that as proof of the “Right to Work” check.

“Group 2, 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 certificate of application issued by the Home Office under regulation 18(3)  or 20(2)  of the Immigration (European Economic Area) Regulations 2016 , to a family member of a national of an EEA country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old, together with a Positive Verification Notice from the Home Office Employer Checking Service .

2. 2.  

   An application registration card  issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service .

3. 3.  

   A Positive Verification Notice issued by the Home Office Employer Checking Service  to the employer or prospective employer which indicates that the named person may stay in the U.K. and is permitted to do the work in question.

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 4A(1)(a)(i))
• the dates for the person’s right to work in the U.K. haven’t expired (see article 4A(1)(a)(i))
• 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)).

You need to make a clear copy of the document in full (see article 6(1)(f)), including both sides of an Application Residence Card (ARC).

Follow-up checks

A “statutory excuse” which comes from checking a document from Group 2, List B will last for 6 months from the date of the “Positive Verification Notice” which is issued (see article 4A(2)).

Before this time comes to an end, an employer should 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 a document from Group 2, List B again, or it can use one of the other ways of doing a check (including an online check).

Bear in mind that, for this follow-up check, if the employee —

• still holds a document in Group 2, List B;
• has no acceptable document to prove their right to work in the U.K.; — or —
• doesn’t have an acceptable document because they have an outstanding application, appeal, or administrative review with the Home Office as to their leave

— the employer must contact the Employer Checking Service  and get a new Positive Verification Notice.  The new (time-limited) statutory excuse will last for 6 months from the date shown in the new Positive Verification Notice.  (When that time runs out, another follow-up check will again be needed.)