Guidelines for Verifying a Person's Immigration Status

To be able to live and work legally in the UK, foreign nationals must have valid immigration status. Employers are required by law to verify all employees' immigration status or face Home Office enforcement action.

In this guide, we will look at how to check someone's immigration status before hiring them, when additional follow-up checks are required during their employment, and the consequences of failing to conduct right to work document checks.

How to Conduct a Right to Work Verification

Employers can now conduct compliant eligibility to work checks in a variety of ways, including:

How do you find out someone's immigration status online?

The type of permission required will be determined by a number of factors, including the individual's nationality and residence status. This will typically include permission under the EU Settlement Scheme (EUSS) for eligible EEA and Swiss nationals, or a visa or proof of settled status for non-EEA nationals and EU citizens without settled or pre-settled status under the EUSS.

Using the Home Office's online service is the simplest and quickest way to check someone's immigration status and right to work.

The online service enables migrant workers to provide their employers with a share code, which is then used to check their right to work in the UK. The online service works by the migrant worker first accessing their own Home Office right to work record, after which they can share this information with others, including their employer, by entering a code that grants you permission to view their status.

An online check of someone's immigration status consists of three basic steps:

• Enter the share code and the applicant's date of birth to view the applicant's right to work details.
• ensure that the applicant's online photo matches
• keep a clear copy of the response provided by the online service, storing it securely in electronic or hardcopy form for the duration of the individual's employment and for at least two years afterwards

The online checking service simplifies and streamlines immigration status checks for employers far more than manual checks. It also increases security because you won't have to rely on physical documentation, lowering the risk of forged documents being provided to you by a prospective employee.

An online check provides information in real-time, directly from Home Office systems, allowing you to instantly check the details of an applicant's right to work in the UK. including the types of work they are permitted to perform and whether there is a time limit for completing this work

Currently, the online checking service supports right to work checks in respect of anyone holding a biometric residence permit, a biometric residence card, settled or pre-settled status under the EU Settlement Scheme, status issued under the UK’s points-based immigration system, a British National Overseas (BNO) visa, or a Frontier Worker permit

Employers can also use digital right to work checks. Employers can conduct checks on British and Irish citizens that are beyond the scope of the Home Office online service by using Identity Document Validation Technology (IDVT) and an IDSP.

Finally, the Employer Checking Service (ECS) is a free online service provided by the Home Office that enables employers to fulfill their obligation to conduct Right to Work checks on employees when the individual is unable to use online checks or provide acceptable documentation for manual checks. This could be because they are awaiting a Home Office decision on a pending application, review, or appeal, or because they arrived in the UK prior to 1989 and lack official documents to prove their status.

How do you manually check someone's immigration status?

To check their immigration status using the online checking service, a migrant worker does not have to agree to provide you with a share code. In these cases, or if their immigration status is otherwise unavailable to view online, you can check their right to work documents, such as their passport or biometric residence permit, manually.

When conducting a manual check, the same three basic steps apply as when conducting an online check:

• Request the applicant's original documents from either List A or List B of acceptable documents for a manual right to work check, which can be found on GOV. UK
• Check that the documents provided are valid, with the applicant present either in person or via video link until April 2022, under current relaxed rules.
• Make and keep copies of the documents in an unchangeable format, recording the date you made the check, and securely storing these documents for at least two years after that individual has left your employ.

 
When conducting a manual right to work check, you must ensure that:

• The applicant's documents are authentic and have not been altered.
• The applicant is the rightful owner of the provided documents.
• The photos resemble the applicant and are consistent across all documents.
• If two documents have different names, the applicant has supporting documents that show why, such as a divorce decree, marriage certificate, or deed poll.
• The dates of birth are consistent across all documents.
• The applicant's right to work in the UK has not expired.
• The applicant has permission to do the type of work you're offering, taking into account any limitations, such as a maximum number of hours they can work.
• Documentary evidence of students' study and vacation times is required.

Changes to the right to work will take effect in April 2022.

From 6 April 2022, employers will be required to conduct online checks for new employees who are Biometric Residence Card (BRC), Biometric Residence Permit (BRP) or Frontier Worker Permit (FWP) holders, as employers will no longer be able to accept physical BRPs, BRCs or FWPs as evidence of the right to work This is true even if the document specifies a later expiration date. The changes will not apply retroactively to BRC or BRP holders employed up to and including 5 April 2022; instead, the previous requirements on document checks will continue to apply for employers to discharge their duty under the anti-illegal working regime.

What happens if you do not inquire about someone's immigration status?

Before hiring someone, all UK employers have a responsibility to prevent illegal working by conducting prescribed right to work checks. This way, you can ensure that a person isn't barred from doing the job because of their immigration status. If you fail to check an applicant's immigration status before hiring them, you could face a civil penalty of up to £20,000 if they are later discovered to be working illegally for you.

When a proper check is performed, an employer should be able to establish a statutory excuse from civil liability. However, if you fail to conduct or properly conduct a check, If you know or have reasonable cause to believe that you are employing someone who does not have the right to work in the UK and you hire them anyway, you will not be excused from civil penalty liability.

Employing someone who is subject to immigration control is also a criminal offense if they are barred from working due to their immigration status and you know or reasonably believe that this is the case. This includes situations in which you are aware or suspect that a worker does not have permission to enter or remain in the UK, that any prior permission has expired, or that they are not permitted to perform certain types of work. Employing illegal immigrants is punishable by up to five years in prison, an unlimited fine, or both.

Finally, failing to check an applicant's immigration status may result in additional sanctions, such as a possible downgrade, suspension, or revocation of your sponsor license, affecting your ability to hire migrant workers.

How frequently should you check an employee's immigration status?

To establish a statutory defense against a civil penalty, you must check the immigration status of all prospective employees before they begin work and only hire a migrant worker after conducting a prescribed right to work check.

There is no need to repeat the check if the individual's right to work is not time-limited, such as if they have UK indefinite leave to remain or EU settled status. If that person has time-limited permission, you must conduct a follow-up check before it expires.

For example, an EEA or Swiss worker with pre-settled status under the EU Settlement Scheme will initially be granted the right to live and work in the UK for a period of five years under the EU Settlement Scheme. However, unless that person has been granted full settled status, continuing to employ them after this permission has expired is illegal. Similarly, a migrant worker with a work visa may have limited leave to remain in the UK and will need to apply for an extension of that leave before it expires.

When a sponsored worker begins a new role, even if the role is for the same sponsor, a right to work check should be performed. The check should be performed after the UKVI application has been approved.

Similarly, if you fail to conduct an immigration status check before hiring a migrant worker, you may face a civil penalty. You may also face a fine if you fail to conduct a follow-up check on someone who has temporary permission to enter the UK.

What happens if a person is unable to prove their immigration status?

If an applicant or current employee cannot show their documents or online immigration status, you must request that the Home Office use the online 'Employer Checking Service' to verify their right to work. This could occur if an applicant arrived in the UK prior to 1989 and does not have any documentation to prove their immigration status. It is also possible that an existing employee has an outstanding appeal, review, or application with the Home Office.

To request a check, you must provide:

• the specifics of your company
• name, date of birth, nationality, and address of the employee
• their job title and the number of hours worked per week
• where applicable, their Home Office reference number or case ID

After requesting a check through the Employer Checking Service, you should receive a Positive Verification Notice if the applicant or employee in question is permitted to work in the UK. As with any other type of immigration status check, you'll need to keep this for your records.

If an existing employee is in the process of applying to extend their permission to work in the UK, they should usually be able to continue working for you while their application is being processed, though that application must be submitted prior to the expiration of their current leave. Your statutory immunity from civil liability will be extended for another 28 days after the expiry date of your employee's permission to allow you to obtain positive verification. This grace period does not apply to any Home Office checks performed prior to employment, and you should not hire the individual until you have received written confirmation of their right to work.

You must also use the Employer Checking Service to check someone's immigration status if they have a digital or non-digital Certificate of Application stating that you need to contact the Home Office to verify their right to work, or an Application Registration Card. The work that you are offering must be permitted, according to the application registration cards.

How to Check an EU Citizen's Immigration Status

Under the EU Settlement Scheme, EEA and Swiss nationals living in the UK on December 31, 2020, could apply for either settled or pre-settled immigration status before June 30, 2021. Employers were also given a grace period up until this deadline date, during which they could continue to check an EEA or Swiss applicant's passport or national identity card to confirm their right to work. This is no longer possible. With the exception of Irish citizens, an EEA or Swiss worker must be able to demonstrate valid immigration status under the EU Settlement Scheme or through a work visa beginning July 1, 2021. They can't use an EEA passport or national ID card to prove their right to work anymore.

EEA and Swiss nationals, on the other hand, will not have a physical document confirming their immigration status under the EU Settlement Scheme; instead, their status will be held in a digital format. This means that if someone has status under the scheme, you must conduct an electronic check on them and cannot deny their application because they are unable to provide physical proof of their immigration status.

It's also worth noting that, according to the most recent Home Office guidance, existing EEA and Swiss employees are not required to undergo retrospective or follow-up checks if they started working for you before 1 July 2021. and provided either a passport or a valid national identity card as proof of their right to work

I require assistance.

For expert advice on complying with the UK right to work regime, contact DavidsonMorris' business immigration solicitors.

FAQs about determining someone's immigration status

 
Last modified: December 18, 2022