Immigration – procedure

A review of the changes in the Home Office’s updated guidance on An employer’s guide to right to work checks - and who it’s for and implications for employers

Right to work checks: employer guidance

How and why you should conduct a right to work check.

Published 7 September 2018
Last updated 7 September 2018 — see all updates
From: UK Visas and Immigration

This collection includes documents which provide guidance and support to employers conducting right to work checks to prevent illegal working. It includes:

  • guidance on preventing illegal working
  • how to carry out right to work checks
  • documents which are acceptable for the purposes of demonstrating a right to work

The Home Office guidance 'An employer's guide to right to work checks' sets out an approved list of the documents employers can accept as proof of right to work in the UK. This list is updated occasionally (so it is important to ensure the latest version is being used). Only the documents which are listed can be accepted and will provide the employer with protection.
The list is in two parts, A and B. If an individual produces a list A document, for example a current or expired passport showing the holder is from the EEA or Switzerland, they have the permanent right to work in the UK and only the initial check is required.
If they produce a list B document, such as a current biometric residence permit indicating the person can stay in the UK currently and do the type of work in question, their right to work in the UK is temporary or time limited. Any statutory excuse will expire when the individual's permission to remain in the UK expires and follow-up checks will need to be conducted. Further information on repeat checks can be found in our 2016 article follow-up right to work checks: are you compliant?
The lists differentiate between documents that can be accepted that have expired and those that must be current. Employers should be careful and ensure that they are clear about which rule applies.

The changes:

The Home Office have again updated their guidance on “An employer’s guide to right to work checks”. Detailed below is a summary of the changes with an explanation of who this guidance is relevant to.

Summary of changes in latest issue

  1. steps employers should take if, in carrying out a right to work check, they consider a prospective employee presents information indicating they are a non-EEA national who has been a long-term lawful resident of the UK since before 1988, and does not possess acceptable right to work documentation;
  2. further clarification on appropriate steps for employers in relation to existing employees;
  3. clarification of the grace period in cases of Transfer of Undertakings (Protection of Employment) transfers;
  4. ending restrictions on the employment of Croatian nationals with effect from 1 July 2018.

Who is this guidance relevant to?

This guide applies to checks required on or after 16 May 2014 to establish or retain an excuse from having to pay a civil penalty for employing a person who is not permitted to work for you.
Where the employment commenced on or after 29 February 2008 and a statutory excuse was established for the duration of that person’s employment before 16 May 2014, the document checks set out in the ‘Full guide for employers on preventing illegal working in the UK’ published in October 2013 continue to apply. For example, since 16 May 2014 an immigration endorsement must be in a current passport to demonstrate a right to work. However, if you conducted a check between 29 February 2008 and 15 May 2014 and accepted an immigration endorsement in a passport that had expired or has since expired, your statutory excuse continues because this was an acceptable document at the time you conducted the check. With the exception of checks made in respect of individuals with time-limited permission to work, you are not expected to conduct retrospective checks on employees if you have previously satisfied yourself that the employee is entitled to work.
This guide applies to employers who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing. However, even if you are not the direct employer of the workers involved in your business, there are compelling reasons why you should seek to know that your workers have a right to work. If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. There could be adverse impacts on your health and safety and safeguarding obligations, as well as the potential invalidation of your insurance if the identity and skill levels of your workers are not as claimed. Accordingly, you should check that your contractors conduct the correct right to work checks on people they employ. You may also wish to use this guidance when you use workers who are genuinely self-employed.
The current civil penalty scheme to prevent illegal working commenced on 29 February 2008 (further to the Immigration, Asylum and Nationality Act 2006). It was not introduced retrospectively. Employers are therefore not required to have a statutory excuse in respect of employees whose employment commenced before 29 February 2008 and who have been in their continuous employment since before that date. Between January 1997 and February 2008, section 8 of the Asylum and Immigration Act 1996 applied to right to work checks conducted during this period.
The law does not require employers to carry out retrospective checks on persons who lawfully commenced employment before 29 February 2008. Follow up checks on existing employees are only required where the person has a time-limited immigration status.
If you are an employer and would like more information, we offer consultations to provide advice and assistance on the best course of action to take tailored to your circumstances.



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