UK right to work checks in focus
HR Dept
Right to work checks are in the headlines this Autumn because the government is broadening their scope as of 1st October.
The changes relate more to commercial law rather than employment law. We’ll give you a brief overview of what’s new later, but it is a good opportunity to review your current right to work check processes.
Has everyone on your payroll, from employees to casual staff, been properly checked? Don’t assume just based on an accent or skin colour that a check is automatically required.
You are likely familiar with right to work checks. They have been around for decades as part of immigration control, but there was a major overhaul post-Brexit.
At this time, well in 2021-22, we saw the following:
EU citizens no longer had an automatic right to work in the UK, and therefore an EU passport was insufficient as a check.
The EU Settlement Scheme permitted EU citizens who were already here and registered under the scheme to work here via a digital record.
British and Irish people have a right to work and a document like a passport proves this.
Many people who do not have EU settled status or British/Irish citizenship need to be sponsored by an employer – this depends on the role, salary level, skills and other criteria.
Digital checking services were introduced by the Home Office.
Civil penalties for the employer for hiring illegally were made higher, and then raised again in 2024 to £45,000 for a first breach and £60,000 for a repeat breach, per illegal worker.
How do you check a right to work?
There are broadly three ways in which you can check someone’s right to work:
Check the original documents (e.g. a passport)
Use the Home Office’s online system
Outsource to a registered identity service provider who uses Identity Document Validation Technology.
If you are checking original documents, you need to be thorough. This will often be a passport, but there are other options listed on the government site. Accuracy and consistency of details like the photo, name and date of birth should be verified, with conflicts such as married name/maiden name followed up on.
You must sign and date clear copies which you take, and hold them on file.
An alternative for non-British and Irish citizens is the Home Office digital system. This involves getting a share code from your candidate which you input. You need to satisfy yourself that their permission extends to the role you are offering (type of work, hours etc.)
If they have a time-limited permission to work you will need a follow-up system to recheck them.
If you can prove you followed the right steps yet they still turn out to not have had a right to work, you will have protected yourself from civil penalty with what is known as a statutory excuse.
There is also an employer sponsored visa system where you can go target overseas workers if you need them, depending on a range of factors, including salary, industry, qualifications and more (and subject to costs).
What is changing with right to work checks this October?
The government wants the rules to reflect the more layered modern working practices which are now endemic – at their loosest known as the gig economy. And so section 48 of the Border Security, Asylum and Immigration Act 2025 addresses this.
As well as those you directly employ, now some contractors, subcontractors, agencies and other ways in which you may indirectly have people working for you need to be considered. Think of it like labour supply chain management.
It potentially moves your obligations beyond employment law and into commercial law, which is beyond where we can help. However, we’d recommend you check your contracts and relationships with suppliers to ensure that right to work checks are made.
Help from The HR Dept
Right to work checks have long been important, with the civil penalties starting at £45,000 per illegal worker. If you would like help setting up the right hiring procedures, please reach out to us and we can help.
