FAQs PREVENTING ILLEGAL WORKING
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Content within this section was last updated 10 October 2023
Q: The guidance released in March 2023 has confused us regarding our use of IDVT, and whether we can use an IDSP to check all employees as we are currently doing. We contacted our provider, and their response was ambiguous. Please can you clarify if we will have a statutory excuse against a penalty if we use an IDSP?
A: We contacted the Home Office for clarification. The wording within their response was: "We can confirm that, other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty".
In light of this clarification from the Home Office, we confirm you can continue to use an IDSP to check all employees; however you will only obtain a statutory excuse against a penalty for British and Irish nationals. To get this defence against a penalty for any non-British or Irish individuals, an employee of your organisation will need to conduct a check via the View & Prove system, and do an imposter check as well, as per the guidance.
Q: Can another person present the documents on their behalf for a manual check?
A: The holder must present themselves to you and you must check the validity of the document in their presence. You should check any photograph in the document with the person presenting it to you to ensure they are one and the same.
Q: Who can undertake right to work checks on behalf of an employer?
A: An employer is responsible for checking right to work, and therefore it would fall to an employee to undertake the check. It being an employee is not explicit within the guidance but it is certainly implied given an employer holds the responsibility and will be liable for any penalty for illegal working. The guidance states 'you may not delegate responsibility to a third party where you are carrying out a manual check of original documents'.
Q: Can we ask our receptionist to undertake the check?
A: The answer to this is not as clear as it may seem. We have known a situation where an individual provided evidence of their right to work to a receptionist within a large Canary Wharf building. It transpired that the receptionist was not an employee of the organisation for which the indivdiual was attending an interivew. Nobody from the recruiting company ever saw the original documentation. So, yes a receptionist can undertake the check, provided they are an employee of your organisation.
Q: What about casual workers/ temporary staff doing the right to work check?
A: UKVI specify an employee must make the checks but this seems to be to stop outsourcing of checks. If the casual staff are directed to make the checks as part of their job we do not believe this to be a problem.
Q: We have someone coming to help us as a temporary support. Do we have to check their right to work?
A: Yes. Anyone being paid - whether permanent, casual or temporary - needs to provide evidence and you need to undertake the checks as required. The key is the employment.
Q: What about volunteers?
A: Yes, volunteers are covered within the remit of checking right to work as well. If a person is doing productive work then they probably should be checked.
Q: What is a worker?
A: A worker is someone who is engaged in a relationship that is in between an “employee” and a “self-employed contractor”. It is an area of huge debate at this stage and is a real key theme to watch out for as there is only a very vague definition in legislation. This is why the government is looking into this area and why there are so many cases on this. The main aim for individuals is to establish that they are not a self-employed contractor but that they are a worker, who should receive rights such as national living or minimum wages, paid annual leave and whistleblowing protection. Businesses need to be careful that those who they think they are engaging individuals on a self-employed basis are not at risk of being classified as a worker. Things that might suggest worker status are:
• the business exercising control over how work is done or requiring the individual to wear a uniform;
• if the individual is integrated into the business and holds themselves out to be part of the business rather than a contractor for it;
• if the individual must personally do the work or if they are allowed to send substitutes; or
• looking at whether the business is obliged to provide work or the individual will be obliged to take it.
Q: Our company is using subcontractors for maintenance issues. Do we need to check evidence of their right to work?
A: You only have a responsibility for preventing illegal working regarding your employees; this does not include contractors. However, from a risk management perspective, we advise that you do conduct checks on anyone who is classed as a contractor. Your reputation will no doubt be impacted upon if you are perceived to be found employing illegal workers. Your insurance could also be invalidated if you have not undertaken your own checks.
Q: What happens in a TUPE scenario?
A: The TUPE transfer regulations 2006 confirm that checks carried out by the transferor (i.e. the seller) will be deemed to have been carried out by the transferee (i.e. the buyer). Therefore, if the statutory excuse was initially obtained by the seller, the buyer will benefit from the statutory excuse; in theory the buyer does not have to conduct checks. However (!), there is considerable risk involved because if the requisite checks were not conducted, it would be the buyer that would be liable for a penalty, should any employee be found to be working illegally. The buyer should also consider that there may be many staff with temporary permissions, and their visa validity periods must be monitored. Accordingly, since 16 May 2014, employers who acquire staff through a TUPE transfer are provided with a grace period of 60 calendar days from the date of transfer in which to carry out the right to work check.
Q: What will happen after Brexit, if those we employ do not have a status from the EU Settlement Scheme - can they still work? What checks should we be doing etc?
A: The new guidance says there is no need to do retrospective checks on existing employees. Right to work proof is (and will continue to be) based on doing the check correctly and under the rules in place when they started with you.
Q: I have never come across anyone not having their own visa. What documentation/information should I ask for to do a right to work check on a candidate who is on their spouses visa?
A: A spouse visa holder is likely to have a BRP or digital status which will enable them to confirm their right to work via the Home Office 'View and Prove' system. Once they give you a share code to check their status and you undertake the right to work check in line with the guidance, this will give you the statutory excuse.
Content within this section was last updated 10 October 2023
Q: Can you help explain the different visa categories and what restrictions the visas have?
A: Certainly! We have put together a summary of all visa categories; this summarises all work and study restrictions upon the visa holders, and explains whether the holder is able to switch into another visa category. This will be useful to understand the options available to either a new recruit or a current employee, if their visa is going to expire.
STUDENTS
Q: What is the maximum number of hours a sponsored student can work for?
A: The maximum permitted hours are 20 during term time, full time (however you define that) temporary work during the holidays. After the holiday period the person should NOT be working any more than 20 hours per week.
Since July 2023 there has been clarification within the guidance around 'full time permanent work'. A student visa holder can work full time hours during holidays or at the end of their studies, but only in a temporary role. Employing a student on a full time fixed term or temporary contract would not resolve the issue, unless the role is genuinely temporary or fixed term in nature - should the Home Office investigate whether or not a role is permanent, it is likely to look beyond the contract and assess whether the role would still need to be filled once the contract has ended.
Q: Are sponsored students allowed to work full-time during exam season, if they have no exams? I understand they are allowed to work outside of term-time, but does exam season count?
A: You need to contact the Registrar at the University to ascertain the holiday dates for this student - different courses have different holiday times. A student can only work full time during their official holidays.
Q: For sponsored students we employ on timesheets, is it 20 hours a week including annual leave or not?
A: The requirement is for the actual hours worked to be 20 or under, so our understanding is you can add the leave element on top of that; however, most employers are more cautious in this situation and ensure that the paid hours do not exceed 20. We requested further clarification from the Home Office and the response was "the 20 hours student guidance is concerned with the number of hours the student is working during term-time to reduce the risk of students working long hours to the detriment of their studies. Time can be processed as holiday, as long as the total number of hours the student spends working for their employer does not exceed 20 hours per week during term time".
Q: When hiring sponsored students, what can we ask for in respect of other paid employment that they may be doing, to ensure they are not working in excess of 20 hours per week?
A: There is very little you can do, other than warn a sponsored student that if you discover they have other employment they will be in breach of their visa conditions and you will be obliged to report to UKVI. This will seriously jeopardise their visa status and ability to complete their studies. You are free to ask for whatever you think fit to show the other employment, you just cannot insist for anything specifically. Do highlight that it helps both parties if you have a clear understanding. An employer can, of course, have its own policy on student work which is over and above the UKVI requirements - for example one of our clients has a policy that all full time PhD students should do no more than 9 hours paid work per week in all jobs, the thought being any more would encroach on the time that should be spent on their PhD.
Q: We have a Student with Leave to Enter doing work experience with us. Is there anything we need to be aware of? The only disclaimer is to work max 20 hrs in term time. Should we confirm with them when their term ends?
A: If it is an organised work experience placement which is part of their course of study, it is allowed under the rules (even if it exceeds 20 hours per week). If auditing files, UKVI would expect to see some correspondence between yourselves and the sponsoring educational institution confirming the nature of the placement.
GRADUATE VISAS
Q. We are looking to bring a candidate on who willl soon be graduating, so currently on a Student visa. They plan to apply for a Graduate visa. Once we have confirmed their graduate status from the university, are we allowed to employ them on a permanent contract, or would it only be a fixed term contract until they get their graduate visa?
A: Once you have obtained the official course end date and confirmation of completion from the University, the candidate is entitled to work full time on their current visa, but not on an open ended permanent contract. All student work restrictions remain in place until they submit their application for the Graduate visa. Once the Graduate visa application has been submitted, the candidate is then entitled to work full time without restriction (i.e. they can then start an permanent full time position) providing they have completed their studies. All other student visa restrictions remain until the Graduate visa is approved.
Q: We have an employee on a Student visa and they are applying for a Graduate visa. What due diligence do we need to do once they get their visa? Also are you aware of any limitations this visa might have that we would need to be conscious of, whether on a fixed term contract or permanent employee. For example, if we made the role permanent what happens at the end of the 2 years on the Graduate visa, will we be able to terminate their contract with no risks?
A: The Graduate visa allows the holder to do any type of work for any employer, it is not tied to a specific job in the same way that a sponsored skilled worker visa is, so it gives great flexibility. It is valid for 2 years, after which the holder will need to move to a different kind of visa (the Graduate visa is a once in a lifetime visa and is not extendable). You could offer to sponsor as a Skilled Worker (if the role is eligible) and the person could switch into this category at any time; you do not need to wait until the end of the Graduate visa.
Regarding contract type, you should not vary the contract type based on immigration status; a non-UK national should be on the same type of contract as a UK national would be in the circumstances. If you use a permanent contract, you must ensure it specifies that the person needs to maintain their right to work in the UK. This then allows an employer to terminate the contract, should the employee no longer have the right to work at the end of their Graduate visa.
Some other considerations for you and the individual - time spent on a Graduate visa does not count towards the 5-year residency requirement for Indefinite Leave to Remain. Should they have future intentions to settle in the UK permanently, it may be preferable to sponsor them now as a Skilled Worker (as time spent on this visa will count towards the 5-year residency requirements and they will be eligible to settle in the UK earlier).
Also, should you sponsor the individual at this stage (i.e. whilst on a Student visa rather than a Graduate visa) then you as the sponsor will not be liable for the Immigration Skills Charge (ISC); this could save your organisation a significant amount of money. When an individual is being sponsored to switch from a Graduate visa, the sponsor will need to pay the ISC, whereas for any Student visa holder being sponsored to switch into the Skilled Worker route, there is an exemption from the ISC.
Q: When an employee has switched to a Graduate visa, do we keep a verified copy of the final visa on file?
A: For a current employee switching visa type, you need to maintain the statutory excuse which you will have obtained at the start of employment. Therefore, you must have historical records to demonstrate an individual has maintained a right to work, and their immigration history during employment with you. As of 06 April 2022, you will need to have a conducted a follow up right to work check using the Home Office View and Prove system (because BRPs are no longer acceptable documents). The expiry date needs to be diarised to ensure a follow up check is undertaken at the appropriate time to maintain the statutory excuse.
SKILLED WORKERS
Q: If an individual has a Skilled Worker visa (we are not their sponsor), can we employ them on a part time basis?
A: A Skilled Worker is only allowed to undertake supplementary employment in certain circumstances. Your right to work check must include checking the individual is permitted to undertake the work you are offering. In March 2023 the Home Office released new guidance which included clarification on the conditions for supplementary work for Skilled Workers:
No more than 20 hours per week
Either shortage occupation role or same SOC code as listed on CoS
Takes place outside of contracted sponsored work.
Q: We sponsor a Skilled Worker and we would like them to do some overtime - is this allowed?
Skilled Workers do have restrictions on what they can do as supplementary work. Overtime with the sponsor does not count as supplementary work so there is no restriction when it comes to overtime. However, it must be paid in line with the salary on the certificate of sponsorship.
GLOBAL TALENT
Q: What is a Global Talent Visa?
A: This is a visa for individuals who are leaders (or potential leaders) in the fields of academia, research, digital tech or arts and culture. The visa is more flexible for the individual; they can use it to work for any relevant employer whereas a skilled worker visa ties them to a specific job. To qualify for the visa, the individual needs an endorsement or to have won an eligible award. More information can be found here for researchers and here from the Royal Society. The Global Talent visa does not involve employer sponsorship. You may be required to provide a letter (see below question) in order to support the application, but that is the extent of the involvement from the employer.
Q: What is the process of obtaining a Global Talent Visa?
A: The two stages are endorsement (if an eligible award is not applicable) and visa application. The endorsement requires an application with supporting evidence - this will be the job description and a letter "a statement of guarantee" from the Director of HR at the company confirming the role and recruitment process for the appointment meet the relevant criteria of the immigration rules. These can be found here. The visa application is a similar process to any other immigration application: complete an application form; pay the fees; confirm your identity; upload supporting evidence (the JD and statement; proof of English; proof of ability to support yourself; etc).
Q: Are they any potential issues having a Global Talent Visa would cause for our company and the individual?
A: No. Many employers - particularly universities - are finding the Global Talent to be an easier and more flexible route than sponsoring as a Skilled Worker.
Q: What happens if an employee is sponsored on a Skilled Worker visa and their application for a Global Talent Visa gets rejected?
A: The Skilled Worker Visa will remain in place if the new application is refused.
Q. A sponsored Skilled Worker is considering switching to Global Talent; will this impact on their eligibility for Indefinite Leave to Remain?
A: Yes, in a good way! Anyone on a Global Talent visa will be eligible for ILR after 3 years on a Global Talent visa. Or, they can combine time spent in the UK on both Global Talent and Skilled Worker visas for the 5 year residency requirement, if this is quicker. For example, they may have spent 3 years on Skilled Worker and then 2 years on Global Talent, at which point they could apply for ILR.
Q: I am concerned the role of ‘Senior Research Fellow’ may not come under the category of ‘leader’ as in the explanation of what a Global Talent Visa is. Is there a way of checking in advance of applying for a Global Talent Visa?
A: This is the purpose of the endorsement - a third party making the decision. If they endorse, the visa will be approved. If there is no endorsement, the visa will be refused.
Q: When applying for the Global Talent Visa, will there be an issue if the job role was in August 2020 but the employee did not start until November 2021?
A: No, the Global Talent visa is based on the individual's knowledge and skills rather than timings of adverts, job offers etc.
DEPENDENTS
Q: I have never come across anyone not having their own visa. What documentation/information should I ask for to do a right to work check on a candidate who is on their spouses visa?
A: A spouse visa holder is likely to have a BRP or digital status which will enable them to confirm their right to work via the Home Office 'View and Prove' system. Once they give you a share code to check their status and you undertake the right to work check in line with the guidance, this will give you the statutory excuse.
Q: Can we employ an individual on a Skilled Worker Dependent visa? Are there any restrictions?
A: Anyone on a dependent visa can work without restriction; it is their family member who has the restrictions upon them. However, bear in mind that their right to live and work in the UK is linked directly to their family member. Should the relationship change, or the family member's job or visa change, then the dependent visa is compromised. We always advise having an open conversation at the start of employment to outline the risks to both the individual and your organisation, should their circumstances change. Ask to be updated if there are any changes which could impact upon their immigration status and right to work.
Q: A potential employee is applying for ILR and has ‘dependant partner leave to remain’ on her BRP. Are we allowed to employ them - I cannot see this document on the list of acceptable documents?
A: With the changes introduced on the 6th April 2022, a biometric residence permit it no longer an acceptable document, however you can obtain the statutory excuse against a penalty by asking the candidate to provide you with a share code o confirm their right to work directly on the Home Office View and Prove system. This will give you the statutory excuse until the expiry date of the current visa and a follow up check will be required at that point. You therefore need to set up a reminder of the expiry date in your HR system.
INDEFINITE LEAVE TO REMAIN
Q: We are unsure if a member of staff has lost their Indefinite Leave to Remain; how will this affect their right to work for us?
A: It is unlikely the individual has lost ILR, unless they have been convicted of a serious criminal offence or been absent from the UK for more than two years. Therefore the will have the right to work. Keep in mind you will only have the statutory excuse against employing an illegal worker if their documentation was in date (current) when you checked it, and if this check was before employment started. If this is the case, then there is no need to make any follow up checks as/when documentation expires. In other words - your statutory excuse depends on what happened with the RTW checks during the recruitment process, rather than anything that has happened subsequently (in the case of ILR).
Q: Does an individual with valid ILR (Indefinite Leave to Remain) but an expired passport have a right to work?
A: There are two answers, depending on the format of the ILR (within passport or BRP):
1. If the ILR is on a valid BRP (Biometric Residence Permit), that is acceptable (as of 06 April 203 this must be checked via the View & Prove online service).
2. If the ILR is within a passport, the passport needs to be valid as well, soif the passport is expired the individual would have to apply for a BRP and then provide you with a share code to check online.
Q: We have an employee who has a BRP (indefinite leave to remain) that was issued in 2014 (expires August 2024). Should they be able to supply us with a share code or would their BRP have been issued before that came into being and therefore, they would not have a digital account with the Home Office?
A: Anyone with a BRP will be able to get a share code by using the UKVI View and Prove service - they create a share code using their BRP number and date of birth. BRPs have not been acceptable for a right to work check since 6th April 2022, so any employee who started since that date must provide you with a share code if they have a BRP of any kind.
DOCUMENT QUERIES
Q: Our employee's visa indicates an expiry date of 31/12/2024. We know they are sponsored for a longer period than this - why does the BRP show this expiry date and what do we need to do?
A: Biometric Residence Permits (BRPs) are being phased out at the end of this year, but that does not mean the actual immigration permission to be in the UK is running out too. An employer must monitor immigration permission expiry dates, and any application to renew or switch visa will need to be submitted before that date. This is the date you must therefore track.
In terms of your records, BRPs alone have not been acceptable evidence of right to work since April 2022, so you will likely have a digital share code check for BRP holders. This share code check is what you need, up until the expiry date of the immigration permission - at which point you will need to do a follow up check.
Q: What will happen when BRPs are no longer valid (as they all expire on 31/12/2024)?
A: From 1 Jan 2025, BRP cards will no longer be issued or valid, as UKVI move towards everyone having a digital visa accessed through a share code. Towards the end of this year, UKVI will issue instructions for visa holders to be able to access their status. They will need to register with UKVI to set up an account, to view and share relevant information about their status securely with third parties, such as employers or landlords. As an employer you will need a share code to log into the UKVI system and then download a pdf document which confirms the expiry date on the immigration leave.
For the employee to get a share code they can currently use their BRP number and use the this portal. You, as the employer, can then use the share code to get the document confirming their right to work beyond 31 Dec 2024. This is done using the view and prove system.
We understand there will be a slightly different process launched later this year and will keep clients who are subscribed to our newsletter up to date as we know more. If you are not subscribed to our newsletter, you can sign up here. This Home Office link will also be useful for updated information.
Q: Can I accept a scanned or photocopied document for checking a person’s right to work?
A: No, you must see the original document. COVID-19 concessions ended in October 2022; since then employers have to see the original document if they are undertaking a manual right to work check.
Q: What should I do if a document bears a different name to the holder?
A: If two documents bear different names, check that the person has supporting documents showing why they are different, e.g. marriage certificate or divorce decree.
Q: I noticed a spelling mistake on a passport (place of birth). What should I do?
A: Spelling mistakes do happen, but they should not be there - and can be corrected if found. Ask for additional documentation, explaining that this is required due to the spelling error on the passport. A birth certificate can be used to confirm personal details if necessary, and to check the authenticity of a document. For information, if needed, the individual can obtain a copy of their birth certificate from the General Register Office if required. If the place of birth correlates then you can be reassured that the mistake is genuine, and including this with the right to work check will show that you investigated the discrepancy. The comprehensive approach is to ask the individual to provide a birth certificate and evidence of NI; these two documents alone will be evidence for your statutory excuse.
Q: Can we accept a Residence Permit sticker stating that an individual has ‘settlement’, within an expired passport?
A: "Current" is now stipulated within List A of acceptable documents for checking right to work in the UK. therefore for any type of immigration status, whether it is leave to remain or indefinite leave, it now needs to be within a current passport. If this question pertains to a new starter, then they will need to obtain current documentation - generally this will be a biometric residence permit or digital status - both of which will need to be checked via the Home Office 'View and Prove' system. Once they have submitted their application, you can contact the Employer Checking Service in order to verify the application has been made, and then the individual can start work. If however, this is a current employee, it only matters that they had the required documents at the start of employment (after this it does not matter if the passport subsequently expires). This is because any documents within List A provide an ongoing statutory excuse against a penalty. So, assuming the right documents were copied at the start of employment, the employee does not need to renew their documents.
Q: So all documents must be valid (i.e. we cannot accept any expired documents)?
A: You are able to accept an expired British or Irish passport or Irish national identity card, providing you carry out the appropriate checks. Employers were previously able to accept EEA passports that had expired - this changed as a result of Brexit, and the new rules which came into play in July 2021.
Q: Can we accept something which looks like a British Passport?
A: This is a common issue is that someone is mistaken for being British. Check the nationality within the Passport; if it is anything other than ‘British Citizen’ , the individual will likely need a visa. These examples could be written within the nationality section of a passport, and would indicate the need for a visa:
a British National (Overseas);
a British Dependent Territories Citizen;
a British Overseas Territories citizen;
a British Overseas citizen;
a British subject; or
a British protected person.
Q: Can we accept the entry clearance sticker within a new recruit's passport, as evidence of their right to work?
A: Anyone coming into the UK is granted a sticker (vignette) within their passport to enable them to enter the UK. This is valid for 90 days and once in the UK, the individual must collect their Biometric Residence Permit (BRP). If they need to start work before they have collected their BRP, then yes, you can copy their vignette in their passport. However, once they have obtained their BRP and are therefore able to provide you with a share code from the Home Office system, you MUST conduct a check using the Home Office 'View and Prove' system in order to retain the statutory excuse (your defence against a penalty).
Q: What happens if, in the above scenario, the individual does not collect their BRP within the 30 days?
A: UKVI stipulate that you, as the employer, are not required to immediately terminate the employment if you believe the employee continues to have the right to work. Once the 90 days has expired however, you will no longer hold a statutory excuse against a penalty if it transpires that the employee is working illegally. You will also not know when the employee’s permission to work expires. You must encourage the individual to obtain their BRP immediately. Without the BRP, an individual will have no evidence of their right to be in the UK and their right to work here. They will also not be able to travel in or out of the country. Also, by not collecting the BRP, the employee is breaching regulations requiring them to collect it. A number of sanctions against an individual could be taken by the Home Office, including civil penalty and varying or ending their permission to be in the UK.
Q: Can an individual with a non-UK passport, who also has a British Citizenship Certificate work without a visa?
A: A certificate of registration or naturalisation as a British Citizen can prove right to work in the UK, as long as it is provided in combination with evidence of National Insurance number.
Q: An individual has a non-UK passport and a British birth certificate. Do they need to apply for an immigration status?
A: A British birth certificate means this individual has British nationality; they have a continuous right to work in the UK. If they cannot prove their British nationality with a British passport, you can accept a British birth certificate, as long as it is in combination with evidence of UK National Insurance number. These two documents in combination will provide you with a statutory excuse against a penalty.
Q: Can we still accept passports that have expired if we are satisfied that they person in the photo is the person presenting the document etc?
A: You can only accept expired British and Irish passports. Anyone of any non-UK nationality would require current documentation/ a digital status check.
Q: Is a refugee travel document considered as evidence of right to work?
A: No, a travel document does not feature on the list of acceptable documents for evidence of right to work. An application registration card can be accepted, as long as it is in combination with an Employer Checking Service positive verification.
Q: What does 'no recourse to public funds' mean on a visa?
A: This simply means the individual is unable to claim government benefits, tax credits, housing assistance etc. Public funds do not include benefits that are based on National Insurance contributions; an individual can claim these benefits if they are working and contributing within the UK. National Insurance is paid in the same way as income tax and is based on earnings. Benefits to which a person is entitled as a result of National Insurance contributions include:
contribution-based jobseeker’s allowance
incapacity benefit
retirement pension
widow’s benefit and bereavement benefit
guardian’s allowance
statutory maternity pay
More detailed information on public funds can be found in the Public funds guidance document.
Content within this section was last updated 10 October 2023
Q: Is our business breaking the law if we do not undertake right to work checks?
A:The law says an employer “must not employ illegal workers”. Holding the statutory excuse (i.e. evidence of having undertaken the required checks following the required process) protects an organisation from a penalty. It is not a legal requirement to have the statutory excuse, but this is your only defence should you be found to be employing an illegal worker.
Q: We understand the need to check our employees. However we have not been diligent on doing this in the past.
A: Retrospective checks will not provide you with the statutory excuse against a penalty. The only way you can obtain the statutory excuse is to undertake the check before employment starts. Undertaking a retrospective checking process could provide reassurance that you are aware of everyone within your organisation if you check current staff, but this is not an easy task. If you do decide to undertake retrospective checks, you need to be mindful of discrimination. This is a useful guidance document for avoiding discrimination - it advises that an employer shoiuld not only check the status of those who appear likely to be migrants. We would strongly advise you to build checks into your recruitment process from now on.
Content within this section was last updated 10 October 2023
Q: Are we able to suggest to a new recruit that they take their documents to a branch office near where they live?
A: Yes. As long as the person undertaking the check is an employee of the same organisation, the check can be undetaken at a different office location.
Q: Are we able to do a check via video link?
A: As long as you have the original documents, you are able to undertake a check via video link/ Skype etc. N.B if this is a manual check then the actual original documents must be in your physical possession. A scanned or faxed copy is not acceptable for the purposes of obtaining an excuse against a penalty.
Content within this section was last updated 10 October 2023
Q: When do I have to check a new recruit's right to work in the UK?
A: The simple answer to this that in order to establish the statutory excuse, you are required to undertake a check on their right to work before employment commences. We receive many questions about taking copies on the first day of employment; we would argue that on day 1 an individual is under contract and employment has commenced. We would also advise that ensuring checks are built into your recruitment process and are completed before day 1 reduces the risk to your organisation. It allows time for any concerns or discrepancies to be addressed.
Q: An employee’s visa expires imminently. They have submitted their visa extension application and shared the confirmation of payment. Within the letter it mentions their immigration status remains unaffected while the application is being processed. Is there a timeline on when the status would no longer be unaffected, particularly if it takes some time for the application to be processed?
A: If an individual makes an application to switch or extend their visa in the UK before their existing permission expires, they will have what is known as '3C leave'. This means their existing immigration permission, and any associated conditions, remains unaffected and is extended while they await a decision on their new visa application. As such, whilst awaiting their new visa application, their right to work will be in line with their 3C leave. This will remain until the Home Office makes a decision on the visa application. In order to maintain your statutory excuse against a penalty, you must complete an ECS check (or there is also the option to do an online check if the individual has an e-visa and provides you with a share code) to confirm the extension application is in motion. The Home Office grants a two-week grace period (from the date of visa expiry) for employers to undertake the ECS check. This will give you the statutory excuse for a temporary period of 6 months. A decision on the visa application should be decided within 6 months; if it is not, you must repeat the ECS. Ensure you have a process in place to follow up with the individual in a timely manner.
Content within this section was last updated 10 October 2023
Q: So how do I obtain the statutory excuse, in order to have a defence should I need it?
A: There is a lot of detail surrounding right to work checks, but to provide a top level summary, this is what UKVI requires employers to do:
Confirm identity - we call this the imposter check
Check immigration status allows work
Create a record
Know when permission expires
N.B. this must happen before a person commences employment.
Q: What do I need to take copies of?
A: In summary, the copies of the following are required for passports:
Any page containing personal details including nationality
Any page containing the holder’s photo
Any page with an expiry date
Any relevant UK endorsements
Front cover (this has not specifically mentioned in guidance as from May 2014, but remains good practice)
Q: How long should I keep the documents on file?
A: For the period of employment and two years beyond the end of employment.
Q: If someone has applied for a new visa, do they have the right to work whilst awaiting the outcome?
A: If an individual makes an application to switch their visa and extend their stay in the UK before their existing permission expires, they will have what is known as '3C leave'. This means their existing immigration permission, and any associated conditions, is extended while they await a decision on their new visa application. As such, whilst awaiting their new visa application, their right to work will be in line with their 3C leave. For example, a sponsored Student switching to Skilled Worker, will have a right to work in line with their Student visa. As an employer you can check any work restrictions and obtain a statutory excuse via either the Employer Checking Service or the Home Office View and Prove system. The latter can only be used where they have been an e-visa holder; in which case they can provide you with a share code to use the online service. If they have a physical visa, you will need to use the Employer Checking Service to verify they have an outstanding application.
Q: What is the difference between the Employer Checking Service and the Home Office online system?
A: Both systems enable an employer to obtain or maintain a statutory excuse against a penalty.
The Employer Checking Service (ECS) can only be used to check pending leave to remain applications; i.e. when somebody has not yet had their visa extension/switch processed. An employer submits a request and within 5 working days they will receive an email with a positive verification notice (PVN) if the individual has a valid application in process. This will provide the employer with a temporary statutory excuse against penalty - for six months. A follow up check MUST be made in order to maintain the statutory excuse - this is either conducted via the online system if the visa application has been processed successfully, or if there are significant delays to the application then a further ECS check may be required.
The Home Office online system (what we call the View and Prove system) is where an individual can 'view' their immigration status and provide a share code to an employer to 'prove' their right to work. Employers can use this system to obtain a statutory excuse in two scenarios - where an individual already has an immigration status, or in the similar scenario to above (where their application for leave to remain in the UK to either extend their current visa or switch immigration category has not yet been processed - providing they have an e-visa so their details are within the Home Office online database).
Q: An employee’s visa expires imminently. They have submitted their visa extension application and shared the confirmation of payment. Within the letter it mentions their immigration status remains unaffected while the application is being processed. Is there a timeline on when the status would no longer be unaffected, particularly if it takes some time for the application to be processed?
A: If an individual makes an application to switch or extend their visa in the UK before their existing permission expires, they will have what is known as '3C leave'. This means their existing immigration permission, and any associated conditions, remains unaffected and is extended while they await a decision on their new visa application. As such, whilst awaiting their new visa application, their right to work will be in line with their 3C leave. This will remain until the Home Office makes a decision on the visa application. In order to maintain your statutory excuse against a penalty, you must complete an ECS check (or there is also the option to do an online check if the individual has an e-visa and provides you with a share code) to confirm the extension application is in motion. The Home Office grants a two-week grace period (from the date of visa expiry) for employers to undertake the ECS check. This will give you the statutory excuse for a temporary period of 6 months. A decision on the visa application should be decided within 6 months; if it is not, you must repeat the ECS. Ensure you have a process in place to follow up with the individual in a timely manner.
Q: Can we accept the entry clearance sticker within a new recruit's passport, as evidence of their right to work?
A: Anyone coming into the UK is granted a sticker (vignette) within their passport to enable them to enter the UK. This is valid for 90 days and once in the UK, the individual must collect their Biometric Residence Permit (BRP). If they need to start work before they have collected their BRP, then yes, you can copy their vignette in their passport. However, once they have obtained their BRP and are therefore able to provide you with a share code from the Home Office system, you MUST conduct a check using the Home Office 'View and Prove' system in order to retain the statutory excuse (your defence against a penalty).
Q: What happens if, in the above scenario, the individual does not collect their BRP within the 30 days?
A: UKVI stipulate that you, as the employer, are not required to immediately terminate the employment if you believe the employee continues to have the right to work. Once the 90 days has expired however, you will no longer hold a statutory excuse against a penalty if it transpires that the employee is working illegally. You will also not know when the employee’s permission to work expires. You must encourage the individual to obtain their BRP immediately. Without the BRP, an individual will have no evidence of their right to be in the UK and their right to work here. They will also not be able to travel in or out of the country. Also, by not collecting the BRP, the employee is breaching regulations requiring them to collect it. A number of sanctions against an individual could be taken by the Home Office, including civil penalty and varying or ending their permission to be in the UK.
Q: Is there a way of simplifying the re-recruiting process for UK and Irish Nationals who had a summer break in their contract, but are now back to work and have a new contract? Do we need to keep refreshing the right to work checks each time there is a break in the contract?
A: If each period is legally classed as separate employment, then you should conduct a RTW check prior to the start of each employment period. There is no requirement, other than ‘prior to employment’ so you could argue that an old check is still valid and prior to employment; however there is a risk UKVI might say it is not valid for the current employment as it is too old! In other words, it is risky to rely on the old checks, and our advice is to redo them.
Q: What would you class as an old right to work check? Would 3 months be sufficient?
A: Be careful of tying yourself down too much with specific dates in a policy. We feel different time periods might apply in different situations, especially when there is a gap between recruitment and start date. Increasingly we see people with a 3 month notice period, and with some teachers / academic staff it can be longer with needing to give at least a full terms notice. In these scenarios, the check could be made at recruitment several months before start date - but that would be justified as the recruitment paperwork would reflect these timescales. So, if the check is completed as part of the recruitment campaign, do not worry too much about the length of time this occurs prior to employment starting, but if it is lengthy (maybe in excess of 3 months) you might want to do a confirmation check just before work starts - as this is not the formal RTW check it could be by video call.
Q: Is the RTW checklist form required to be completed and kept in an individual’s personnel file, or is it just a checklist for us now to ensure we are collecting the right documentation?
A: The checklist has never been a legal requirement (but a good / useful tool to enable consistency and compliance). There is no longer a traditional checklist; but you can use it to create your own and ensure you are following current requirements.
Q: Is it a requirement that we keep a copy of individual’s passport if they aren’t seen manually for any reason, or should the electronic versions be sufficient for RTW checks?
A: You only need to keep copies of passports where they are used for a manual RTW check. If a digital check is completed via the Home Office View and Prove system, then the passport is not needed; however, you do need to keep them for checks already made (i.e don't destroy old records! You must have historical records of an individual’s right to work from the employment start date).