Home Office publishes draft Code and new guidance on right to work checks from 1 July 2021

Employers have an obligation to prevent illegal working and as part of this, they’re required to carry out checks that the people they employ have the right to work in the UK before they start their employment. Employers have both potential civil and criminal liability in this area.

It’s a criminal offence for an employer to employ someone who they know, or have reasonable grounds to believe, does not have the right to work in the UK. It’s also a civil offence if an employer unknowingly employs someone who does not have the right to work. However, if an employer can show that they carried out the correct right to work checks at the appropriate time, they will have a ‘statutory excuse’ against civil liability (the statutory excuse does not apply to criminal liability). To qualify for this, the checks must be carried out before the employee starts work.

The penalty for criminal liability can be up to five years imprisonment and/ or an unlimited fine. The penalty for civil liability can be a fine of up to £20,000 for each illegal worker.

European citizens can continue to use their passport and national identity card to prove their right to work up until 30 June 2021. However, from 1 July 2021, this will no longer be acceptable proof of their right to work in the UK.

Up until 30 June, employers cannot require candidates to produce evidence of their status under the Settlement Scheme.

Home Office guidance does not require employers to conduct retrospective checks on European employees. Provided the correct right to work checks were carried out in compliance with the rules in force at the time they were recruited, an employer will have a statutory excuse should it later be discovered that the employee did not have the right to work.

However, this is on the assumption that the employer did not actually know, or have reasonable grounds to believe, that the individual may not have the right to work (as otherwise the statutory excuse would not apply).

The employers’ guidance states that European nationals who have 'reasonable grounds' for missing the application deadline will be given a further opportunity to apply. Caseworker guidance has set out a wide range of circumstances where this might apply, such as where the individual lacked mental capacity or was unaware of the deadline for a variety of reasons. The guidance sets out transitional measures which can be followed up until 31 December 2021, in cases where the employee was employed prior to 30 June 2021 (they do not apply to individuals employed after this date).

Under the transitional measures the employer must:

1. Advise the employee to make an application under the Settlement scheme within 28 days and provide you with a Certificate of Application (CoA).


2. Upon receipt of the CoA, the employer must contact the Employer Checking Service to confirm the individual has applied. If they have made an application, the Employer Checking Service will issue a Positive Verification Notice. Retaining the Positive Verification Notice and the CoA will provide the employer with a statutory excuse for a period of six months, enabling the employee to continue in their employment while their application is concluded.


3. Before the Positive Verification Notice expires, the employer must carry out a follow-up check with the Employer Checking Service. If the individual has been granted status, they will be able to prove their right to work using the online service. If the application is still pending, the employer will be given another Positive Verification Notice for a further six months .

The new rules do not apply to Irish citizens, and they can continue to use their passport or passport card to prove their right to work.

From 1 July, the same rules will apply to all foreign nationals, including European citizens and employers will be able to check an individual’s right to work in one of three ways:

1. Checking online . To do this you will need the job applicant’s:
• date of birth and
• right to work share code
2. Alternatively, you can check the candidate’s original documents
3. In certain specific circumstances, employers can use the Home Office Employer Checking Service (more details on this below)

The new Code retains List A and List B documents, but changes have been made to the lists.

The difference between the two lists remains that List A documents provide a statutory excuse for the entire duration of their employment as there are no restrictions on their permission to be in the UK.

List B documents provide a limited statutory excuse as in these cases there are restrictions on the employee’s permission to be in the UK and to do the work in question. In these cases, follow-up right to work checks have to be undertaken.

Key changes to note include the removal of European passports and national identity cards as proof of right to work (with the exception of Irish citizens who are specifically covered in List A), the addition of the Frontier Worker Permit in List B and the inclusion of evidence of status or a pending application under the EU Settlement scheme.

If you carried out your right to work checks before 1 July, the current rules will apply (passport or national identity card being acceptable proof of the right to work). It will be important to retain a clear record of when the check was carried out. However, any necessary follow-up checks after 1 July must comply with the new rules.

When an individual cannot provide the employer with any of the documents from List A or List B, but claims that:

• they have an ongoing immigration application or appeal with the Home Office, or
• their documents are with the Home Office, or
• they present other information indicating they are a long-term resident of the UK who arrived in the UK before 1988

the employer will have a statutory excuse against liability from the expiry date of an existing employee’s leave for a further period of up to 28 days. This will enable the employer to obtain a Positive Verification Notice from the Employer Checking Service.

This 28-day period does not apply to checks carried out before the start of the employment and in those circumstances, the employer should delay the start of their employment until they have received a Positive Verification Notice from the Employer Checking Service. A request for verification of the right to work can be made online here.

The Employer Checking Service aims to provide a response within five working days and it’s very important that employers retain any response received to evidence their statutory excuse.

The Code also states that if the Employer Checking Service has not considered an employer’s request within five working days, the employer will receive an automatic response informing them that the prospective employee may be hired.

The government introduced time-limited adjustments to the right to work checks process on 30 March 2020, allowing employers to carry out right to work checks virtually.

Under the adjusted process, an employer should:

• ask the employee to submit a scanned copy or a photo of their original documents via email or using a mobile app
• arrange a video call with the employee, ask them to hold up the original documents to the camera and check them against the digital copy of the documents. They should then record the date they made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
• if the employee has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, they can use the Home Office online service while doing a video call. The employee must give the employer permission to view their details.

This adjusted process was due to end on 20 June but there was a last-minute extension of this to 31 August 2021.

The draft Code specifically states that employers will not need to carry out retrospective face to face physical right to work checks for employees who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive).

• Remind employees that applications under the EU Settlement scheme must be submitted by 30 June 2021 (this should go to all employees and not just the employees you think it may be relevant to).
• Get ready for the new rules coming in by reviewing and revising your existing right to work checks procedure to ensure compliance with the new scheme with effect from 1 July 2021 (including use of the Home Office’s online right to work check tool).
• Train managers on the new procedures.
• Remember, the statutory excuse only applies where the correct right to work checks were carried out in line with the rules which applied at that time. It’s therefore essential that you not only carry out right to work checks correctly, but you have a clear process which is followed to show that these checks have been carried out and when they were done. These records should be retained for the duration of employment and two years following the end of their employment.
• If you have concerns that your record keeping of right to work checks is inadequate and wish to carry out fresh checks, it’s important that this is done in a non-discriminatory way and all employees are asked to produce evidence of their right to work (remember: if this is carried out before 1 July, European citizens can produce their passport or national identity card). It’s important to remember, however, that the statutory excuse only applies where the check is carried out before the start of their employment.
• Although the checks should be made before the employee starts work, requiring this at the earliest stages of the recruitment process could leave employers facing allegations that recruitment decisions were based on their nationality or immigration status. The Equality Act Code of Practice recommends: “Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone and is not influenced by other factors. Depending on the employer’s recruitment process, and the type of job being filled, candidates might be asked for the relevant documents when they are invited to an interview, or when an offer of employment is made.”
• Remember, if you are employing individuals from outside the UK, you’ll need a sponsorship licence unless the individual has status under the EU Settlement scheme, has indefinite leave to remain in the UK or is an Irish citizen. For more details on obtaining a sponsorship licence, please see here.