The rules for employers checking right to work in the UK of prospective employees have become increasingly complicated. This quick recap of rules will help you and your business to stay on the rights side of the law, and avoid costly financial penalties.

It is unlikely to have escaped your notice that the UK government’s messaging on immigration has gone into overdrive in recent months. From the tightening of rules on sponsored workers and their families, to warnings of severe consequences for employing illegal migrants, the Labour administration clearly recognises immigration as an Achilles heel in the face of attacks from Reform and the political right. Here I consider the practical implications for employers of this new political reality; not just for businesses which employ foreign staff, but for anyone needing to conduct right to work checks across their workforce.

1. Getting right to work checks right

Every employer understands the need to obtain ID and proof of status from potential recruits. For British and Irish citizens this can be as straightforward as seeing the original – then checking and retaining a copy – of a valid passport. For anyone else, the rules have become rather convoluted – from types of acceptable documentation, to the period you must retain evidence of the right to work.

2. What checks are acceptable for British and Irish staff?

You can either conduct a manual check, or use a digital verification service, for British and Irish citizens. Manual checks involve three steps which must all be completed before employment begins:

• Obtain an acceptable original document
• Check it is genuine and belongs to the person in front of you
• Copy the document, and save it electronically or in hard copy

A few general points here: you are not expected to be an immigration officer, just to check for obvious differences between person and document; if names are different you should see another document explaining why, such as a marriage certificate. You must date your checked documents. If you are unlucky enough to be presented with a false document, you are only liable to a civil penalty for illegal working if it is reasonably apparent it is false.

An alternative to a manual check for a British or Irish citizen is the use of a Digital Verification Service (DVS). Formerly known as ID Service Providers (IDSP), these are private companies offering a checking service. Remember however it is the employer, not the DVS, which is held responsible in the event of a failure to identify an illegal worker.

3. How long do I have to retain record checks?

You have to keep copies securely for the duration of employment plus 2 years, after which the files must be securely destroyed to ensure compliance with data protection rules.

4. How to check foreign candidates?

Checks for workers holding foreign passports, regardless of their immigration status in the UK, must now be conducted in part online. Biometric residence cards and permits – previously issued by the Home Office – are no longer in use, and are not acceptable evidence of a right to work.

You may still rely on a manual check of a physical passport or other ID documents to ensure the person you’re looking to employ is the rightful holder of that document. Follow the same 3-step process here as with British and Irish candidates. You must then obtain a “share code” online.

5. How to obtain a “share code”

Before employment begins, you must ask the prospective worker to provide you with a share code. To begin your online check see ‘Check a job applicant’s right to work: use their share code’ on GOV.UK. Individuals using the service must select one of the three reasons for sharing their immigration status. After selecting the correct option, in this case ‘Prove your right to work to an employer: get a share code’ the individual can then generate a 9-character long share code that can be passed on to an employer which, when entered alongside the individual’s date of birth, enables you to access the required information.

The share code will be valid for 90 calendar days from the point it has been issued and can be used as many times as needed within that time. A work check code begins with letter “W”; you cannot rely on codes starting with “R” or “S”.

An individual may provide a share code to you directly, or send it via the Home Office online service. In the latter instance, the email will come from [email protected].

Check results must be screenshotted and retained in the same way as those on physical documents, for the period of employment plus 2 years.

6. What if a Share Code is not available?

This does sometimes happen, for example where an individual is waiting for a decision on an immigration application; this is commonly the case with those applying under the EU settlement scheme, who may hold a paper “certificate of application” giving them a right to work. In this instance, you must contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse against illegal working. You may only proceed with employment where this checking service returns a “Positive Verification Notice” (PVN).

7. Is this a one-off check?

Sometimes yes; for example where someone holds indefinite leave to remain in the UK, also known as settled status or permanent residence. But remember that the ECS and share codes may only provide a time-limited defence to an employer; it is vital that you have HR systems capable of noting and diarising, for example, visa expiry dates for students or sponsored workers.

8. What is the situation with trial shifts and induction training?

It is important to understand the difference between the two, both of which are common in certain labour-intensive sectors such as hospitality. An unpaid trial shift does not involve employment, so is permissible without a right to work check. We do however advise that a check is conducted to avoid the potential for problems.

Induction training, on the other hand, connotes the start of an employer/employee relationship – so a check is mandatory whether the training is paid or unpaid.

9. What are the penalties if I fail to comply?

They are, unfortunately, ridiculously heavy. A first civil penalty starting point is £45,000 per worker; for subsequent penalties it is £60,000 per individual. Discounting is applied for e.g. co operation with a Home Office investigation, but only serves to reduce penalties by £5,000 or so.

10. Do I need to know the status of contractors and agency staff?

At present this is not a legal requirement, but the government has signalled its intention to place a responsibility on employers for anyone working on their premises, whether an employee or not. For now, Home Office guidance describes “compelling reasons” why you should check the status of anyone working or providing services to your business, but watch this space: this is likely to change.