Under the Prevention of Illegal Working regime, UK employers are under a duty to verify the working status of all employees before their employment commences. 

Practically speaking, this means performing documentary checks on all new employees to confirm their identity and that they hold a valid right to work in the UK and to carry out the role intended.

Where the Home Office finds that an employer has failed to perform right to work checks correctly, they face a civil penalty fine of £20,000 per undocumented worker.

On receipt of the civil penalty notice, the employer will have a strict 28-day period to respond, either by paying the fine or opting to challenge the decision.

Details of the employer’s business may be published by Immigration Enforcement as a warning to other employers not to employ illegal workers.

The Home Office may also take punitive measures in respect of the organisation’s points-based system licence to sponsor migrant workers.

If it is found that employers knowingly hired illegal workers or had ‘reasonable cause to believe’ that the individual did not have the right to work in the UK, they may face an unlimited fine or five years imprisonment.

Illegal employees will be subject to immigration control and may face deportation.

It will also be important to ensure these checks apply to all employees, including British and European nationals as well as non-EEA citizens, to avoid allegations of discrimination and unfavourable treatment

Acceptable documents

Given the severity of the penalties for non-compliance, employers are advised to take a proactive and informed approach to meeting their immigration compliance duties.

To discharge their duties and to offer a defence in the event of Home Office scrutiny, employers should have consistent processes in place that ensure all new employees are subject to compliant right to work checks and that adequate records are maintained of the checks.

Employers can only accept specific documents from employees when carrying out right to work checks. These documents are specified by the Home Office under Lists A and B.

List A documentation contains the range of documents that may be accepted for an individual who has a permanent right to work in the UK and are not subject to immigration control or restrictions on their stay. If right to work checks are conducted correctly, the continuous statutory excuse for employment, corresponding with the provisions of the Immigration, Asylum and Nationality Act 2006, is established. Any further checks for proof of the right to work are not necessary.

List B documentation is split into two further categories. As a whole, List B documentation should be presented by individuals who have been granted leave to enter or remain in the UK for a limited period of time, or have restrictions on their right to work.

List B (Group 1) documentation is presented when a time-limited statutory excuse lasts until the expiry date of leave. This means Group 1 documentation showing the proof of the right to work is presented when an individual’s permission to reside in the UK expires at a specified date. Employment checks should be carried out before and at regular intervals during the period of employment to ensure continued eligibility to work.

List B (Group 2) documentation is presented when a time-limited statutory excuse expires 6 months from the date specified in a Positive Verified Notice, a document issued by the Home Office Employer Checking Service and sent to the employer. This document indicates that the named individual may stay in the UK and is permitted to execute the work in question. Employment checks should be conducted before employment and after 6 months.

Which documents are acceptable under each list?

Acceptable documents which fall under List A are as follows:

  • A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK. 
  • A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
  • A Registration Certificate or Document Certifying Permanent Residence issued by the UKVI to a national of a European Economic Area country or Switzerland. 
  • A Permanent Residence Card issued by the UKVI to the family member of a national of a European Economic Area country or Switzerland. 
  • current Biometric Immigration Document (Biometric Residence Permit) issued by the UKVI to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK. 
  • current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. 
  • current Immigration Status Document issued by the UKVI to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, 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. 
  • A birth (short or long) or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, 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. 
  • A birth (short or long) 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. 
  • 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.

Acceptable documents that fall under List B (Group 1) are as follows:

  • current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. 
  • current Biometric Immigration Document (Biometric Residence Permit) issued by the UKVI to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 
  • current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the UKVI to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence. 
  • current Immigration Status Document containing a photograph issued by the UKVI to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of 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 a previous employer.

Acceptable documents that fall under List B (Group 2) are as follows:

  • A Certificate of Application issued by the UKVI under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area 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 UKVI Employer Checking Service. 
  • An Application Registration Card issued by the UKVI stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the UKVI Employer Checking Service. 
  • Positive Verification Notice issued by the UKVI Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

What if an employee cannot present documentation?

If an employee cannot present the required documentation, for example because they are awaiting a decision on a Home Office application, you may be able to make use of the Home Office’s Employer Checking Service to verify the individual’s working status. This applies where:

  • The employer is reasonably satisfied that the employee cannot show their documentation of proof of the right to work due to an outstanding appeal, administrative review or application within the Home Office
  • The employee has an Application Registration Card
  • The employee has a Certificate of Application that is less than six months old
  • The employee is a Commonwealth citizen who has been residing in the UK before 1988

Application registration cards and certificates of application must explicitly state that the type of work the employer is offering is statutorily permitted. It must be noted that there have been previous cases where individuals have not been granted permission to work, due to the illegitimacy of the type of work that is offered by the employer.

The Home Office will send the employer a ‘Positive Verification Notice’ to confirm that the potential employee has the right to work. The employer must keep this document as the employee’s proof of the right to work in the UK.