Right to work checks: how UK businesses can avoid costly mistakes

Ensuring employees have the legal right to work in the UK is one of the most critical compliance obligations for HR professionals. With the far from slick introduction of eVisas, ongoing updates from the Home Office and the increase of illegal working raids being undertaken by UK Visas and Immigration (UKVI) officials, businesses must stay vigilant to avoid hefty fines, operational disruptions, and reputational damage. Here, I break down the key aspects of right to work checks, common pitfalls, and best practices for HR teams to ensure compliance.

1. Updated guidance on right to work checks Post-Brexit

Since the end of free movement between the UK and the EU in 2021, right to work checks have undergone significant changes. Here’s what businesses need to know now:

• Temporary adjustments Post-COVID: The flexibility introduced during the pandemic, allowing remote document checks, ended on 30 September 2022. Employers must now return to in-person or online verification methods to maintain compliance.
• Manual checks: Can still be undertaken in respect of all nationalities. However, the list of acceptable documents does get updated regularly and, as a result, some individuals will be unable to provide any of the accepted documents for a manual check.
• EU, EEA, and Swiss Nationals: Since 1 July 2021, EU, EEA, and Swiss citizens can no longer use their passports or national ID cards to prove their right to work.
• IDVT checks: The introduction of Identification Document Validation Technology (IDVT) allows employers to verify valid biometric British and Irish passports digitally through certified providers, streamlining the verification process.
• Online checks: Non-British and non-Irish nationals should now evidence their right to work via a Share Code and UKVI’s online service.
• Changes to Biometric Residence Permits (BRP): All BRPs should now be out of date and are no longer accepted as proof of right to work. Instead, these individuals should have or be in the process of setting up a UKVI account and eVisa. Their right to work must now be demonstrated using the Share Code and the online services noted above.

2. Common pitfalls leading to fines and penalties

Failing to conduct proper right to work checks can lead to severe consequences, including civil penalties of up to £60,000 per illegal worker, potential criminal liability, and loss of sponsorship licenses. Here are some of the most frequent mistakes businesses make:

• Relying on expired or cancelled documents: Employers must ensure documents are valid at the time of the check. If an employee has a time-limited visa, a follow-up check is essential before it expires to avoid any compliance breaches. In addition, Employers must ensure they do not rely on a clipped British or Irish passport as evidence of a person’s right to work, as these documents are not valid.
• Failing to use the online checking system: Some visas and statuses, such as the EU Settlement Scheme, must be verified through the Home Office’s online system rather than relying on physical documents.
• Not checking the documents: It might sound daft, but the documents, including eVisas, need to be checked carefully. Those undertaking the checks should be sufficiently equipped to identify instances of impersonation, counterfeits, forgeries and pseudo/fantasy documents.
• Inconsistent record-keeping: Employers should maintain accurate and organised records of all checks, including copies of verified documents, the date of verification and, ideally, the name of the person who completed the check, to ensure a clear audit trail. One of my pet peeves is seeing a printout of a right to work check document, which hasn’t been ticked or annotated to confirm that the checks were done correctly and by the appropriate person!
• Completing the checks late: An initial right to work check is not completed correctly if it is undertaken after the individual actually starts work. At the absolute latest the check should be done on their first day of employment before they commence their duties.
• Not conducting follow-up checks: If an employee has temporary permission to work, HR teams must diarise follow-up checks and take proactive measures to prevent any unintentional non-compliance.

3. 3C Leave confusion

A common issue HR teams encounter is confusion around 3C Leave—a provision that allows individuals to continue working legally while their visa extension application is pending. Misunderstanding this provision can lead to unnecessary job suspensions and/or compliance breaches.

Key points to remember:

• If an employee submits an in-time application before their visa expires, their leave extends automatically under 3C conditions until a decision is made.
• Employers should request confirmation that an application has been submitted but should not assume 3C Leave applies in every case.
• The right to work check should be conducted via the Home Office Employer Checking Service if an application is pending and the online system does not confirm work rights.
• Misinterpreting 3C Leave can result in either wrongful termination of employees or, conversely, unknowingly employing someone without valid work authorisation.

4. Best practices for HR teams to ensure compliance

To stay compliant and mitigate risks, HR teams should implement these best practices:

• Standardised checking process: Establish a uniform and documented approach to right to work checks across all hires to ensure consistency and reduce the risk of errors.
• Use the Home Office online service where required: Particularly for those with digital status, such as EU citizens under the Settlement Scheme, to ensure accurate verification.
• Keep accurate and secure records: Maintain copies of all right to work documents and proof of verification in compliance with GDPR requirements, ensuring easy retrieval for audits.
• Schedule follow-up checks for time-limited visas: Automate reminders for visa expiry dates to prevent lapses and avoid last-minute issues.
• Regularly train HR and hiring managers: Immigration rules evolve frequently, so ongoing training ensures HR professionals remain up to date and aware of compliance obligations.
• Seek legal advice for complex cases: If in doubt, give us a call. We can help navigate complex situations and prevent costly mistakes.

Right to work checks are a legal necessity that should not be overlooked. By following updated guidance, avoiding common pitfalls, understanding 3C Leave, and implementing best practices, HR teams can protect their businesses from costly penalties. Staying proactive, informed, and organised will ensure compliance while fostering a diverse and legally authorised workforce.

If you’d like to discuss any of the issues raised in this article, please contact Lynsey Blyth.

Author

Lynsey Blyth