Aberdeen City Council values the diversity of its workforce and welcomes all employees who are legally entitled to work in the UK.  In this section, you will find information about the law on preventing illegal working and the document checks you should carry out.

This page might be useful to you if

  • You are involved in recruitment and want to learn more about right to work in the UK checks
  • You manage an employee who has a temporary right to work in the UK and want to know what to do as the expiry date on the employees right to work in the UK approaches
  • You manage an employee that has a restriction on the hours they can legally work and want to ensure you comply with this restriction

Attachments

Link to further training

If you want to learn more about employing foreign nationals, training is available:

You might also be interested in

The Home Office are responsible for the enforcement of the law in relation to preventing illegal working.  The following  information can be found on the Home Office website.

If you have questions about what you need to do to ensure that we comply with our legal requirements you can also contact the Home Office Employer Helpline on 0300 123 5434.

Introduction to Right to Work Checks

What is a Right to Work Check?

A right to work check means that you check a document which is acceptable for showing permission to work.  You must do this before you employ a person to ensure that they are legally allowed to do the work in question.  You are also required to do a follow up check on people who have time limited permission to work in the UK.

Why do I need to do checks?

Aberdeen City Council has a statutory duty, outlined in the Immigration, Asylum and Nationality Act 2006, to prevent illegal working.  It is a criminal offence to employ anyone who has not been granted leave to enter or remain in the UK, or who does not have permission to do the work you are offering.  The Council could be liable if you know or have reasonable cause to believe that you are employing an illegal worker, you may face up to 5 years in jail and pay an unlimited fine.  You can also be peanilised if you employ someone who doesn’t have the right to work and you didn’t do the correct checks, or you didn’t do them properly.  In these circumstances, you might have to pay a civil penalty (fine) of up to £20,000 or each illegal worker.   

  • you cannot provide a record of having conducted right to work in the UK document checks before recruitment; or
  • you have accepted a document which clearly does not belong to the holder; or
  • you have conducted a check and it is reasonably apparent that the document is false; or
  • you have accepted a document which clearly shows that the person does not have permission to work in the UK and, or carry out the type of work you are offering.

Who do I conduct checks on to avoid discrimination?

Right to work checks must be carried out on all prospective employees/workers prior to being appointed.  This requirement is for all candidates whether it is for permanent, fixed term, relief or casual work.

For existing employees/workers follow-up checks must also be carried out where the  right to work in the UK is time limited.

It is important that we ensure that our recruitment and selection procedure does not discriminate against individuals on racial grounds.  Many people from ethnic minorities in the UK are British citizens, and many non-British citizens from black and minority ethnic communities are allowed to work in the UK.  The Home Office have published a Code of Practice to help organisations comply with the law on illegal working by carrying out document checks without discriminating against individuals on the basis of their race.

The best way to ensure that you do not discriminate is to treat all job applications in the same way at each stage of the recruitment process.  You should ask any prospective employee to present documents before they start working.  You should not make presumptions about a person’s right to work in the UK on the basis of their background, appearance or accent.

How do I effectively check Right to Work in the UK?

Follow the 3 Step Process – Obtain, Check and Copy a document which evidences that an employee/worker has a legal right to work in the UK.

3 Step Process – Obtain, Check, Copy

This section explains the 3 step process you should carry out to find out if a person has both the right to work in the UK and the right to carry out the type of working you are offering.

Step 1- Obtain

You must obtain original documents which confirm a right to work in the UK. The Home Office Right to Work Checklist  details all the documents that are acceptable under List A or List B. If you are given a document which is not on this list you should ask for additional documentation.

  • List A contains a range of documents which shows that an individual has an ongoing right to work in the UK and you do not have to carry out any further checks during employment.
  • List B contains a range of documents which shows that an individual has a limited right to work in the UK and you will need to carry out follow up checks during employment.

If you are in any doubt about the documents you have been given you can contact People and Organisation or the Home Office Employer Enquiry helpline (0300 123 5434) for further advice.

Examples of the documents within List A and List B (including images of the documents) can be found in the Full Guide for Employers on Preventing Illegal Working produced by the Home Office.

Step 2 – Check

You are required to satisfy yourself that the documents presented to you are genuine, that the person presenting them is the rightful holder and allowed to do the type of work you are offering. You must check:

  1. Photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
  2. Expiry dates for permission to be in the UK have not passed;
  3. Any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
  4. The documents are genuine, have not been tampered with and belong to the holder; and
  5. The reasons for any different names across documents (e.g. marriage certificate) divorce decree, deed poll). Supporting documents should also be photocopied and a copy retained.

The Home Office consider the falseness to be reasonably apparent if an individual, who is untrained in the identification of false documents, examining it carefully, but briefly, and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine.

If someone gives you a false document or a genuine document that does not belong to them, then you should report the individual to People and Organisation who will contact the Home Office.

An expired UK or European Economic Area passport can be accepted if you are satisfied that the date of birth on the expired document is consistent with the appearance of the holder. In most cases an expired passports issued by any other country is not acceptable, however there are exceptions to this so please check the Home Office website for further information. 

Step 3 – Copy

You must make a clear copy of each document in a format which cannot later be altered, and retain the copy securely: electronically or in hardcopy. You must retain a record of the date on which you made the check (“certified as a true likeness, original seen by [your name] on [date]”) . Please copy and retain:

  1. Passports: any page with the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question.
  2. All other documents: the document in full, both sides of a Biometric Residence Permit, Application Registration Card and a Residence Card (biometric format).

You should then forward the copy documents to HR. It is recommended that you complete the Home Office Right to Work Checklist  as a guide and to evidence that you have fully considered and checked the documents. If you do not use the checklist please write ‘original copy seen and checked’ and sign and date the copy documents.

Please note that providing evidence which is signed and dated confirming that you have seen and checked the documents is a mandatory Home Office requirement.

Follow Up Checks

If you manage an employee who has a time limit on their right to work in the UK it is recommended that you make provision to carry out follow-up checks by noting the expiry date of the right to work in the UK or, if applicable, the Positive Verification Notice. 

When the employee/worker’s permission to remain in the UK is about to expire the HR Service Centre can guide you through your role in carrying out a follow-up check.  Any doubt about continuity of an employee/workers right to work in the UK can be anxious time for the individual so it is important that you familiarise yourself with the rules and procedures surrounding this so that you can support your employee appropriately while protecting the Council’s interests.

What if the employee won’t have new documentation before the expiry date?

Some visa applications take longer to complete and employees may not have new documents before their current permission to work in the UK expires. In these cases we need proof of an in-time application.  The employee should provide  a letter of acknowledgement from Home Office or, if this is not available, the Post office receipt showing the record of posting their application to the  Home Office  (post code DH99 1WQ).

28 Day Grace Period

Providing that you have received documentary evidence, and are satisfied that, the employee has submitted an in-time application to the Home Office, a 28 day grace period can apply.  This means that the Council can continue to lawfully employ the individual for 28 days from the permission expiry date OR until you become aware that the employee can no longer work in the UK (if this is sooner), for example because the employee’s visa application is declined during that period.

This grace period gives a window during which investigations into whether the Council can continue to employ the individual.  This will include HR using the Home Office Employer Checking Service.

What is the Employee Checking Service?

The Home Office Employer Checking Service is an online service that enables employers to check whether or not an individual has the right to work in the UK in situations where he/she is unable to provide appropriate documents.  

To carry out the check the HR will need a copy of an acknowledgement letter from the Home Office with the Home Office reference number or case ID (if they have either) and we MUST have the employee’s verbal or written permission to carry out the check.  

The Home Office Employers Checking Service should normally respond within 7 working  days and will confirm if it is a POSITIVE or NEGATIVE verification.  A Positive Verification Notice means that the employees right to work in the UK can continue for up to 6 months while their application is pending.  A Negative Verification Notice means that the employee/worker does not have a right to work in the UK and their employment/relief worker status should be terminated.

Where a Positive Verification Notice is in place you should continue to communicate with the employee/worker regarding the progress of their ongoing application with the Home Office.  You should request new documents when they become available and follow the 3 step checking process.  If the application is unsuccessful you should contact HR immediately.

Employing Students

Not all international students (those from outside EEA or Switzerland) are entitled to work while they are in the UK, but some are allowed to take limited employment provided their conditions of their permission to study permit this.

A student granted permission to be in the UK as a Tier 4 student who is permitted to work will have a clear endorsement on their passport or Biometric Residence Permit.  This will state that they are permitted to work and the number of hours of work during term time eg. 10 or 20 hours in a week.  If this information is not stated in the documents, the student does not have the right to work. 

Students who have the right to work are permitted to work full-time during non-term time vacation periods. 

Short-term students are not permitted to work, either in the term or the vacation, or do a work placement.

When you conduct checks and are presented with documents indicating that that the holder is a student with term time restrictions on working hours there is a requirement to obtain and retain academic term and vacation dates.  The Home  Office Employer’s Guide to Right to Work Checks  details the documents considered to be acceptable evidence of term time dates.  This will make it easier for you to know when an international student can work part-time for you and when full-time working hours are permitted.  Please state in writing which establishment the student is studying at when submitting the right to work documentation to HR for an international student to aid the annual checking process.

It is important that you monitor activities and working hours to avoid inadvertent breaches of the conditions of immigration permissions, as the consequences of a breach of these conditions has serious financial and reputational consequences.

If you become aware that an international student with permission to work has stopped studying before completing their course they may be in breach of their immigration conditions and you should contact HR immediately.

When employing a student on a work placement which is an integral part of their course, you require written agreement with the student’s education institution about the work placement.  This agreement requires to be retained as evidence that the work placement does not exceed the time permitted for this activity.  For more information on work placements see the  Home Office An Employers Guide to Right to Work Checks.

Transfer of Undertakings

Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 provide that right to work checks carried out by the transferror are deemed to have been carried out by the transferee.  Therefore, the transferee will obtain the benefit of any statutory excuse the transferror acquired.  For further details regarding Transfer of Undertakings see the  Home Office An Employers Guide to Right to Work Checks.

Other Categories of Workers

Dependants

An employee might be living and working in the UK on a dependant visa, for example as a dependant of his or her spouse or as a child of someone who has the right to work in the UK under the Tier 2 points based system. 

If the employees circumstances change, for example because he or she divorces or the main visa holder loses the right to work in the UK, the employee is likely no longer to meet the eligibility requirements for the dependant visa.  There are exceptions to this, so it is important that this is investigated before taking action.

European Economic Area (EEA) Nationals and their Family Members

EEA nationals and their family members have a right to live and work in the UK established by European Union legislation known as ‘the Free Movement Directive’.  A national passport, identity card or other document included in List A which indicates that the holder is a national of an EEA will evidence a right to work in the UK.

The EEA consists of the countries within the European Union together with Iceland, Liechtenstein and Norway.  Switzerland is not part of the EEA however, the same rights to live and work in other Member States have been extended to Swiss Nationals and their family members and require the same checks.

It is not yet known what rules on immigration and free movement of people will be in place following the UK’s withdrawal from the EU.

Croatian Nationals

From 1 July 2018 Croatian Nationals will no longer be subject to restrictions on their access to the UK labour market.  Croatians will be able to take up employment in the UK without the need first to obtain worker authorisation from the Home Office.  A Croatian National may demonstrate their right to work by producing an official document showing their nationality, usually either a national passport or national identity card.

 Sponsoring Workers from Outside the EEA

Sponsorship is a flexible system that adapts to the changing economic circumstances of the UK.  As a licensed sponsor, Aberdeen City Council are required to take responsibility for any workers we sponsor, and ensure that they have intention and ability to meet the conditions of their visa.

If you employ a sponsored worker, it is vital that you inform HR if the individual fails to turn up for work, if the employment period comes to an early end ie. they resign or are dismissed.

Click here to return to the main People Management page

Add a ‘Like’ and/or a ‘Rating’ below to indicate how useful you found this page

 

(Visited 60 times, 1 visits today)
Please Rate this Page
%d bloggers like this: