Under the Immigration, Asylum and Nationality Act 2006, there is a legal requirement for UK employers to check that a job applicant has the legal right to work (RTW) before employment begins, regardless of nationality.
Completing due diligence before an employee starts their employment will mitigate the risk of a civil penalty and provide a statutory excuse which can prevent significant penalties if it is later found that an employee is working illegally.
Earlier this year, the Home Office introduced significant updates to guidance on RTW checks for UK employers. Key changes include:
1. Transition to digital RTW verification
Biometric Residence Permits (BRPs) and Biometric Residence Cards (BRCs) are no longer valid for RTW checks. A UK Visas and Immigration (UKVI) account must now be created by the employee to access their electronic visa (eVisa), which serves as proof of RTW.
2. Revised acceptable documents for manual checks
Home Office guidance now specifies that clipped (i.e., cancelled) British or Irish passports are not acceptable for RTW checks.
Expired passports are an acceptable form of RTW to check along with UK birth certificates or adoption certificates when presented alongside official evidence of the individual’s name and NI number issued by a government agency or previous employer.
3. Introduction of the Ukraine permission extension scheme
Launched on 4 February 2025, this scheme allows Ukrainian nationals and their eligible family members to extend their stay in the UK and retain their work rights. Employers should be aware of this provision when verifying the RTW for Ukrainian employees.
4. Removal of COVID-19 temporary adjustments and a return to standard procedures
Sections related to COVID-19 temporary adjusted RTW checks has been removed. Employers are now required to follow standard procedures, including in-person manual document verification checks where applicable, digital identity verification, or Home Office online checks.
5. Revision of acceptable documents for manual RTW checks
Annex A of the employer’s guidance has been revised to clarify acceptable documents for manual RTW checks. It is important when checking documentation to visit the acceptable documents list which can be found here. These updates aim to streamline the RTW verification process and ensure compliance with current immigration policies.
6. Statutory excuse for RTW checks
Establishing a statutory excuse for RTW checks protects employers from costly fines or criminal liability for employing an illegal worker if all prescribed checks have been followed correctly. If an employee is later found to be working illegally, the employer can avoid such penalties by demonstrating they carried out these checks.
A criminal penalty can be applied if the employer knowingly employs someone who is not authorised to work. This applies if the worker is an EU or non-EU citizen, and the employer failed to check their RTW status.
The statutory excuse includes (in summary):
- Conducting a prescribed check: The employer must carry out specific checks (in line with the Home Office guidance) which may include examining documents such as passports or visas or checking the employee’s immigration status through an online system (e.g. the Home Office online RTW checking service).
- Retention of evidence: The employer must retain a copy of the relevant documents used to prove the employee’s RTW. These documents must be kept for the duration of the employment and for at least two years after the employee leaves.
- Timing of checks: RTW checks must be completed before employment begins, not after.
- Timebound verification checks: Employer verification checks through the online system are timebound. Importance should be exercised on expiry dates, and employers must have a system in place that reminds them to complete follow up checks.
Civil and criminal penalties
The immigration enforcement authorities can investigate and apply a penalty for employing an illegal worker which can range from £45K for a first offence to £60K for a second offence. It can be reduced if the employer pays quickly and/or can show they have cooperated with the authorities. These figures are a starting point and areas for mitigation are specific and limited.
If an employer knowingly employs someone who is not authorised to work, they could face criminal prosecution. This can happen in cases of ‘reckless’ or deliberate hiring of individuals who do not have the RTW.
Outsourcing the responsibility for RTW checks
Subcontracting RTW checks to a third party can carry certain risks for employers. While outsourcing this responsibility might seem like an easier option, it is important to recognise that the legal responsibility for compliance remains with the employer. The loss of control and oversight can have potential risks which would need to be considered:
- Subcontractors might not carry out the checks to the same standard or with the same level of diligence as an in-house team. Mistakes or oversights in the verification process could lead to the hiring of someone without the RTW, resulting in penalties.
- If the subcontractor does not consistently follow the RTW check procedures, there may be discrepancies in how checks are done, leading to non-compliance.
- First and foremost, any liability remains with the employer. If a subcontractor fails to carry out the checks correctly, the employer may still face costly penalties.
Ensuring that employers are legally compliant when it comes to RTW checks has always been challenging, now even more so with these changes! If you’re an employer and you are unsure as to whether your organisation is compliant, get in touch on 01942 727200 or email enquiries@employeemanagement.co.uk for a free 1 hour, no obligation chat with a member of the team who will be able to provide expert guidance.