Right to work checks: Your guide, what you should be checking and When
All Companies are placed under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. A criminal offence will be committed where an organisation employs an individual and they have “reasonable cause to believe” they do not have the right to work in the UK.
Government Code of Practice on Right to Work Checks
The Code recognises that discrimination can occur in many ways but focused on the subject of avoiding race discrimination, as this is the main issue employees face when being asked of their right to work.
The Code outlines employers should:
• Be consistent in how they conduct right to work checks with all applicants
• Ensure job selections are made on the basis of suitability for the role
• Ensure no applicants are discouraged or excluded because of known or perceived protected characteristics (eg race).
The Code further highlights employers should not:
• Discriminate when conducting right to work checks
• Only check the status of those who appear likely to be migrants
• Make assumptions about a person’s right to work based on their colour, ethnic or national origins, nationality, accent, surname or length of time they have been resident in the UK.
Failure to adhere to the above may risk an employer acting in a discriminatory manner and facing claims of race discrimination.
To avoid discrimination claims, employers should ensure all applicants are treated equally at each stage of the recruitment process. Having a clear written recruitment and selection procedure can further support this, as can a zero-tolerance stance against any form of race-related bullying, harassment and discrimination in the workplace.
Carrying Out Right to Work Checks
Right to work checks should be carried out before a person is employed to ensure they are legally allowed to do the work in question. If completed correctly before employment begins, this will establish a continuous statutory excuse for the duration of that person’s employment, meaning further checks on that individual are only required if their right to work is time-limited and the end date is approaching. Care needs to be taken to avoid carrying out these checks too far in advance however because an individual's right to work status could change within this period.
Employers are encouraged to give individuals reasonable opportunity to show they have the right to work try by keeping jobs open for as long as possible, unless urgent recruitment needs prevent that. The code also expressly recognises that technical issues may arise beyond an individual’s control (eg broken share code systems) could prevent them from demonstrating a right to work using the Home Office online service. In such cases, the code states that such individuals must not be discriminated against or treated less fairly.
The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Regulations 2026 brings the revised Code into force from 1 October 2026.
Check all prospective employees
Organisations need to ensure they are carrying out these checks against all prospective employees, including those who are British or Irish. This will remove the risk of discriminatory treatment and will prevent mistakes being made about permission to work where the individual is wrongly assumed to be British.
From 1 October 2026, s.48 of the Border Security, Asylum and Immigration Act 2025 will expand employers’ obligations to carry out right to work checks for anyone working for them who is:
1. engaged under a worker’s contract
2. engaged as an individual subcontractor
3. engaged via an online matching service providing the details of an individual who is a service provider to potential clients or customers.
This will mean anyone who is classed as working in the name of the business will need to have a right to work check carried out and it includes those working in the gig economy or zero-hours contracts. Essentially, this is anyone a business hires to work on their behalf.
Under the Act, liability for the civil penalty for illegal working will also be extended to all those who provide work or a service to that business, even where there is no contractual relationship in place.
An updated Code of Practice on avoiding unlawful discrimination while preventing illegal working has been published to support this new duty. See Updated draft Code of Practice for Employers: Avoiding Unlawful Discrimination While Preventing Illegal Working above for more information.
Checking Documents
To prove they have the right to work in the UK, the prospective employee will have to produce, either digitally or physically, original right to work documents. The documents which are acceptable for those who began employment on or after 29 February 2008 are set out in two lists.
• List A documents — these documents are available to individuals who have a permanent right to work in the UK. Where a list A document or a combination of documents are provided to the employer, they will not be required to carry out follow-up checks and the statutory excuse will apply for the length of their employment.
• List B documents — these documents are available to individuals who have a temporary or time limited right to work in the UK. Follow-up checks will be required.
List B
To help organisations further, List B documents are separate into two further groups.
• Group 1 documents — these documents are time limited and the statutory excuse will apply until the permission to work in the UK expires. Before this occurs, organisations should carry out a follow-up check of documentation to ascertain whether the employee has a continued right to work in the UK from the expiry date of the original document.
• Group 2 documents — these documents require the organisation to carry out a Home Office verification check using the online Employer Checking Service. A positive verification notice will need to be received from the Home Office in advance of employment commencing. These documents will provide the statutory excuse for six months and the organisation will need to carry out a follow-up check of documentation once the six-month period ends.
Additionally, where the worker has indicated they are a student who has a limited right to work in the UK, organisations will have to obtain documentary evidence of the university’s academic and vacation dates.
Online checking service for foreign nationals
Organisations can use the Home Office’s online right to work checking service to carry out immigration checks. Where the individual’s immigration status can be checked online, no further documentary evidence is required. The organisation will be required to meet three conditions in order to gain the statutory
Checking using video calls
Since 1 October 2022, live video calls to confirm the visual appearance of the individual presenting for work, for manual checks and online checks (using the Home Office system), have been permanently available (after being introduced temporarily during the pandemic).
Guidance provided by the Home Office does not comment on whether or not a video call is sufficient for the purposes of checking the appearance of the individual is consistent with the image and biographic details on the IDVT report that is produced when a check is conducted by an IDSP, but this has been confirmed in government policy.
Manual Checks
All three stages of the check must be completed to establish a statutory excuse. Manual checks can be conducted for:
• British and Irish citizens
• foreign nationals.
Step 1: Obtain
Obtain original documents from either List A or List B.
Step 2: Check
Employers must check that the documents are genuine and that the person presenting them is the prospective employee, the rightful holder and allowed to do the type of work they are being offered. The following must be checked.
• Photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation.
• Expiry dates for permission to be in the UK have not passed.
• Any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-time, details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed must also be obtained, copied and retained).
• The documents are genuine, have not been tampered with and belong to the holder.
• The reasons for any difference in names across documents can be explained by providing evidence (eg original marriage certificate, divorce decree absolute, deed poll, etc). These supporting documents must also be photocopied, and a copy retained.
When checking the validity of the documents, the employer must be in the presence of the holder. This can be a physical presence in-person or via live video call link. In both cases, employers must be in physical possession of the original documents. For example, the person may choose to post the documents, to enable the check to be conducted with them via live video link. It is not possible to rely on the inspection of the documents via live video link or by checking faxed or scanned copies of the documents.
Step 3: Copy
A clear copy of each document must be made in a format which cannot manually be altered and the copy must be retained securely: electronically or in hard copy.
A secure record of the date on which the check was made must be retained. This requires more than simply writing the date on the copy document. If a date is written on the copy document, it must also be recorded that this is the date on which the check was conducted.
Employers must copy and retain copies of:
• passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question — it is not necessary to make a copy of the front cover
• all other documents in full.
All copies of documents taken should be kept securely for the duration of employment and for two years afterwards. The copy must then be securely destroyed.
This copying process will have to be repeated when organisations are carrying out follow-up checks in relation to any documents provided within List B.
List A Documents
Below is the current list.
A passport (current or expired) showing 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 passport card(1) (in either case, whether current or expired) showing that the holder is an Irish citizen.
A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
A 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(2).
A current Immigration Status Document issued by the Home Office 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 or adoption certificate(3) issued 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(4).
A birth 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.
Footnotes:
1. A clipped passport is a cancelled document (identified by the corners of certain pages in the passport being cut/removed) and therefore is not acceptable proof of right to work.
2. “Definition includes those with a document which shows that the holder is entitled to readmission to the UK (RUK endorsement)” and ILR endorsements from a Crown Dependency.
3. Definition includes a short or long birth certificate.
4. Definition includes a birth certificate issued by a UK diplomatic mission (British Embassy or British High Commission) and consular birth certificates.
List B Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of permission to enter or permission to stay
A 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(1).
A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
A current Immigration Status Document containing a photograph issued by the Home Office 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.
Footnotes:
1. This includes a current passport endorsed with a stamp showing an individual has been granted leave to enter and there are no work-related conditions attached. If, under the conditions of the individual’s leave, work was restricted or prohibited the endorsement placed in the individual’s passport would explicitly set that out as a condition.
List B Group 2 – documents where a time-limited statutory excuse lasts for six months
A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
A Certificate of Application (non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.
A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules or Appendix EU to the Immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules, together with a Positive Verification Notice from the Home Office Employer Checking Service.
An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
A Positive Verification Notice issued by the Home Office 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.
Contacting the Home Office for Verification
In certain circumstances, you will need to contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse. It is expected that, in most cases, you will be able to conduct a manual or online check. However, you should contact the ECS in the following cases.
1. You are presented with a Certificate of Application which is less than six months old and which indicates that work is permitted.
2. You are presented with an Application Registration Card stating that the holder is permitted to undertake the work in question. If the card contains an expiry date, this date must not have expired. Any work will be restricted to employment in a shortage occupation.
3. You are satisfied that you have not been provided with any acceptable documents because the person has an outstanding application with us which was made before their previous permission expired or has an appeal or administrative review pending against our decision and therefore cannot provide evidence of their right to work.
4. You consider that you have not been provided with any acceptable documents, but the person presents other information indicating they are a long-term resident of the UK who arrived in the UK before 1988.
In the above circumstances, you will establish a statutory excuse only if you are issued with a Positive Verification Notice (PVN) from us confirming that the named person is allowed to carry out the type of work in question.
You should not contact the ECS where employment commenced before 29 February 2008 and has been continuous ever since. You will receive a Negative Verification Notice because this employment is out of scope of the civil penalty scheme.
Follow-up Checks and Expiring Right to Work
You need to recheck the right to work of individuals who have time-limited permission to work in the UK. This means that you need to do a follow up check when the documents provided by the employee for the initial pre-employment check were from List B. List A documents do not need a follow up check.
You should do the follow up check when their previous permission comes to an end. When conducting follow-up checks, you may use either the manual right to work check or the online right to work check where applicable, irrespective of the type of check you conducted originally, before employment commenced.
The frequency of these follow-up checks depends on whether the documents you are provided with are from Group 1 or Group 2 of List B.
Group 1 documents provide a time-limited statutory excuse which expires when the person’s permission to work expires. This means that you should carry out a follow-up check shortly before permission which demonstrates their permission to work expires.
Group 2 documents provide a time-limited statutory excuse which expires six months from the date specified in your Positive Verification Notice. This means that you should carry out a follow-up check shortly before this notice expires.
In-time applications
A person’s application for further permission to stay in the UK must be made before their existing permission expires for it to be deemed “in-time”. If they do this, any existing right to work will continue until that in-time application has been determined; this is known as 3C leave.
On 26 January 2023, changes came into force enabling some individuals with an outstanding in-time application to stay in the UK, an appeal, or an Administrative Review to prove their right to work using the Home Office online checking service.
Prior to 26 January 2023, for all individuals, employers were required to contact the Home Office Online Checking Service to obtain a Positive Verification Notice (PVN) which provided the employer with a statutory excuse valid for six months.
What if an employee's right to work expires whilst they are waiting for an extension or variation?
In such cases, s.3C of the Immigration Act 1971 applies to protect a person who makes an in-time application to extend their leave, from becoming an overstayer while they are awaiting a decision on that application, and while any appeal or Administrative Review they are entitled to is pending. This “3C Leave” means their existing leave gets extended until a decision is made about their pending application.
Where applicable, those with in-time applications will, from 26 January 2023, have their 3C Leave reflected within their digital profile, allowing them to prove their rights, such as right to work. If an employee advises you that they have an outstanding, in-time application, and they are an eVisa holder, you should ask them to provide you with a share code. Once in receipt of the share code, you can use the online service to carry out the right to work check as set out in this guidance.
In such circumstances, the online service will provide confirmation of the individual’s right to work and will provide you with a statutory excuse for a period of six months. This is the standard duration when right to work checks are conducted on individuals who have an outstanding, in-time immigration application. Upon any subsequent application to renew the right to work, you must carry out a follow-up check.
Some users may not be supported by the online service at this time as work continues to move to digital by default. In circumstances where the individual is unable to provide you with a share code, yet they have an outstanding, in-time application, you should contact the ECS for verification of this. It does not apply to those on non-digital routes, those who are applying for non-digital route status and those who have leave through the EU Settlement Scheme or as a frontier worker.
From 5 October 2023, EUSS, EUSS family permit and S2 Healthcare Visitor applicants who are refused on eligibility grounds, or granted pre-settled rather than settled status, will no longer have the option of administrative review. Submitting an appeal or making an second application where possible, will be the only options.
Biometric residence permits and Biometric residence cards
Where an employees provided a time limited physical BRP or BRC document issued before 1 January 2020, it may have an expiry date after 31 December 2024. If this is the case, the follow-up right to work check must have been done before 31 December 2024 because the document expired on that date. This involved the employee creating a UKVI account and obtaining an eVisa. If in doubt about an employee's right to work, you should contact the Home Office's Employer Checking Service on the GOV.UK website.
Making Conditional Offers of Employment
To ensure right to work checks are carried out prior to employment starting, organisations are encouraged to make offers of employment conditional upon the provision of satisfactory right to work documentation or the undertaking of an online check.
Making a conditional employment offer will increase the likelihood of sufficient right to work documents being provided to the organisation in a timely manner, as the candidate is aware they have to do this in order to start their employment. It also reduces the possibility that these checks are missed on the individual's first date of employment, ensuring the statutory excuse can be obtained.
Where the individual does not provide satisfactory documents, or does not provide documents at all, and the online checking service cannot be used, the employment offer can be withdrawn without any notice being provided to the individual.
TUPE and Right to work checks
Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 provide that right to work checks carried out by the transferor (the seller/old employer) are deemed to have been carried out by the transferee (the buyer/new employer). As such, the new employer will obtain the benefit of any statutory excuse established by the seller.
However, if the seller did not conduct the original checks correctly, the buyer would be liable for a penalty if an employee, who commenced work on or after 29 February 2008, is later found to be working illegally. Also, a check by the buyer may be the only way to determine when any follow-up check should be carried out in respect of employees with time-limited permission to work in the UK.
For these reasons, employers who acquire staff in cases of TUPE transfers are advised to undertake a fresh right to work check on those staff they have acquired. Employers are not required to have a statutory excuse in respect of employment which commenced before 29 February 2008, where the individual has been in continuous employment prior to that date. This includes where employment has continued as part of a TUPE transfer.
The Home Office recognised that there may be practical problems in completing checks before employment commences for workers acquired as part of a TUPE transfer, and for this reason a grace period has been provided during which employers should undertake the check. This period runs for 60 calendar days from the date of the transfer of the business, to correctly carry out fresh right to work checks in respect of those TUPE employees acquired. There is no grace period for any subsequent follow-up checks.
Illegal Working (Definition)
Section 15 of the 2006 Act defines illegal workers as adults, those aged over 16, who are subject to immigration control and do not have permission to carry out the work in question because they:
• have not been granted leave to enter or remain in the UK
• their leave to enter or remain in the UK is invalid, no longer applies or prevents them from carrying out the particular employment.
Illegal Working Offences (Employing Organisation)
All employers in the UK have a responsibility to prevent illegal working. This is done by conducting right to work checks before employing someone, to make sure the individual is not disqualified from carrying out the work in question due to their immigration status. If the required checks are conducted in the correct way, a “statutory excuse” against liability for a civil penalty will be established in the event the employer is found to have employed someone who does not actually have the right to work in the UK.
Civil penalty
There is a civil penalty in place where an employer can be fined up to £45,000 for each illegal worker who does not have the correct permission to carry out the work they are employed to do. For repeated breaches, the employer can be fined up to £60,000 per illegal worker. Prior to 13 February 2024, the fine for a first breach was £15,000, and for repeated breaches, £20,000 per illegal worker.
A criminal offence will be committed if you employ an individual and have “reasonable cause to believe” they do not have the right to work in the UK. It can also lead to disqualification as a company director, being prohibited from sponsoring migrants and the seizure of earnings made as a result of the illegal work.
Criminal offence
Additionally, organisations may also commit a criminal offence where they employ an individual and they have “reasonable cause to believe” they do not have the right to work in the UK. Organisations who are convicted can be subject to an unlimited fine or a maximum of five years’ imprisonment. In the future, they may also not be able to sponsor migrants. It can also lead to disqualification as a company director, being prohibited from sponsoring migrants and the seizure of earnings made as a result of the illegal work.
Government guidance notes that the criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the “Right to Work Scheme”. It is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with its guidance to support their employees to make an application to the EUSS.
Enforcement actions
Where there are reasonable grounds to believe the organisation is employing an illegal worker, an illegal working closure notice can be served on the business in certain circumstances.
Organisations might also face seizure of earnings made as a result of illegal working; and review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector.
