Manual “Right to Work” checks using List A

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 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 List A 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 continuous (it will not run out) — so the employer does not have to do any “follow-up” checks.

Who can use a “List A” document

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

• is a British citizen (see paragraphs 1, 8, 9, 10, 11, 12 below)
• was a citizen of the U.K. and colonies with the right of abode in the U.K. — who would have automatically become a British citizen on 1^st January 1983 (see paragraph 1 below)
• is a British subject with the right of abode in the U.K. (see paragraph 6 below)
• is a Commonwealth citizen with the right of abode in the U.K. (see paragraph 6 below)
• is an Irish citizen (see paragraphs 2, 3, 10, 11 below)
• is an EEA / Swiss national (see paragraphs 2, 3 below)
• is a family member of an EEA / Swiss national with the “permanent right of residence” in the U.K. (see paragraph 4 below)
• was born or adopted in the U.K., Channel Islands, Isle of Man, or Ireland (see paragraphs 8, 9, 10, 11 below)
• has “indefinite leave to remain” (or is “settled”) in the U.K. (see paragraphs 5, 6, 7 below)
• has the “right of abode” in the U.K. (see paragraph 6 below)

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).

“List A” 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 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. 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. 3.  

   A registration certificate or document certifying permanent residence issued by the Home Office to a national of a EEA country or Switzerland.

4. 4.  

   A permanent residence card issued by the Home Office to the family member of a national of a EEA country or Switzerland.

5. 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. 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. 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. 8.  

   A birth 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. 9.  

   An 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.

10. 10.  

    A birth 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.

11. 11.  

    An 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.

12. 12.  

    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.

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))
• 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))
• for all other documents — the document in full (see article 6(1)(f))

Follow-up checks

If an employer has done a “Right to Work” check using List A, there is no need to do a follow-up check at any time.  A person who can provide a document from List A has the right to work in the U.K. indefinitely — this right does not run out.

In fact, any “check” done after the employee has started to work would be legally pointless.  A statutory excuse is only established if a proper “Right to Work” check was done before the start of the employment.  (And if a proper “Right to Work” check was done before the start of employment using List A, the statutory excuse would be continuous and would not run out.)

Therefore follow-up checks only have any legal significance if an employee has previously undergone a “Right to Work” check, but never using List A.