Right to work checks: when and why
Produced in partnership with Duncan Bain of Penningtons Manches
Right to work checks: when and why

The following Immigration guidance note Produced in partnership with Duncan Bain of Penningtons Manches provides comprehensive and up to date legal information covering:

  • Right to work checks: when and why
  • What are the benefits of a correct right to work check?
  • Sources
  • Which workers should be checked?
  • Who can conduct the check?
  • Conducting the check
  • Data protection issues (GDPR)
  • When should a check be made?
  • The initial check
  • Repeat checks
  • more

This Practice Note looks at why employers need to carry out ‘right to work’ checks and when such checks should be made.

What are the benefits of a correct right to work check?

A correctly conducted right to work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the employment. To obtain the excuse, the employer must show that it has taken particular steps during the right to work check. Obtaining relevant documentation is not sufficient in itself.

For guidance on the civil penalty regime see Practice Note: Illegal workers—civil and criminal sanctions.

It is implicit in this scheme that a right to work check will not in itself prevent all instances of illegal working. A person’s immigration status is dynamic and the right to work may be lost after a check has been made, or else the documents that are checked may already not reflect the true position or may be good forgeries.

Employers in general do not break the law if they fail to carry out a check on a particular person; they simply carry the full risk of the civil penalty if the person is identified as working illegally. However