As an employer, you have a duty to prevent illegal working. An employer must conduct right to work checks on all potential employees before they begin employment. There are no rules on when to conduct the check, as long as it is before employment. It can be on their first day, before they start work.

If you conduct a right to work check correctly, you will obtain a statutory excuse against a civil penalty.

You will not have a statutory excuse against a civil penalty in the following circumstances:

• You have not conducted the prescribed right to work checks before employment commenced;

• You have accepted a document which clearly does not belong to the holder;

• You have accepted a document which clearly shows the person does not have the right to work/stay in the UK and/or do the job in question;

• The endorsement demonstrating work entitlement or the biometric residence permit has expired;

• You know you are employing someone who is not allowed to work in the UK, regardless of whether you have carried out checks;

• Your statutory excuse has expired; or you have not detected a ‘reasonably’ apparent forgery.

An employer faces a large financial penalty of up to £20,000 for each illegal worker. If you knowingly employ an illegal worker, you may also face up to 5 years imprisonment and an unlimited fine.

Conducting a Right to Work Check:

Obtain – The onus is on the employee to provide documents to you to satisfy you that they have the right to work in the UK. The employee must provide you with their original documents in-person.

Check – As an employer, you must ensure that the documents are genuine and belong to the employee. Photographs, dates of birth and names should be consistent throughout the documents. Any inconsistency with the name on a document must be backed up by additional evidence showing the reason for the change (e.g. a marriage certificate). You must also ensure that the documents are valid. However, you can accept expired passports from UK and EEA Nationals as long as all other checks are in place

Copy - You must make a clear copy of all of the relevant pages of each document and retain this securely. The date must also be recorded in the form of a dated declaration or by holding a separate record securely. If making a dated declaration on the copy, you cannot simply insert the date. It must be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’. 

Copies must be retained securely for at least 2 years after employment has ended

Employee Checking Service:

If an employee or potential employee cannot provide the specified documents for the following reasons, you can ask UK Visas & Immigration to check their status:

• They have an outstanding application or appeal with UKVI

• They have a Certificate of Application

• They have an Application Registration Card

You must first obtain the employee or potential employee’s permission. Details of the Employee Checking Service can be found on the Government website. 

Tier 2 Employees:

In addition to right to work checks, as a sponsor, you should ensure that you adhere to all guidance per the most up to date version of Appendix D – Keeping Documents Guidance for Sponsors: 

In particular, you should ensure to have the following systems in place for Tier 2 employees:

• A system to flag up any expiration dates of current employee’s visas

• A record of all migrant’s absences

• A record showing the history of migrant workers contact details (address, telephone and mobile number) which must be kept up to date

• A copy of a migrant workers National Insurance Number

• A copy of migrant workers payslips

• A copy of migrant worker’s contract of employment

• A detailed job description for all migrant workers

• A copy of any qualifications that the migrant worker holds to show the skills and experience that the migrant has to do the job. 

This factsheet has been provided for information purposes only and is not intended to be used as advice. You must always ensure to carry out right to work checks in line with the most up to date guidance on the Government website. Please contact IQA Immigration for advice or assistance with Right to Work checks.