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Changes to Right to Work checks from October - what you need to know

In April 2022, we wrote about changes being made to the way employers carried out Right to Work checks, planned to come into effect at the start of October. Now those changes are here, and employers need to be aware of what the law requires them to do.

Before the pandemic, an employer who wanted to recruit someone would have to carry out a physical document check to verify their right to work in the UK. Failure to do so could lead to significant consequences.

Temporary measures introduced due to the pandemic allowed employers to carry out virtual checks via video calls and those who needed to produce their documents could do so using email or a special mobile app.

Those arrangements came to an end from 1st October 2022 and physical document checks have now resumed.

Employers should bear in mind that, regardless of the changes in the way that right to work checks are carried out, they remain necessary. If a business employs someone who does not have the right to work in the UK then they have hired an illegal worker.

A maximum fine of £20,000 can be imposed for each illegal worker in a company.

An employer who has knowingly hired illegal workers could receive an unlimited fine and be sent to prison for up to 5 years.

What you need to do now

From the start of October 2022, verifying someone’s right to work can be handled in one of two ways:

  • In-person right to work checks

  • Digital right to work check using an IDSP

In-person checks

For all employers, and particularly for those who started in business after the start of the remote checking rules, it is time to review policies and procedures to ensure that they are up to date and comply with what the law requires.

You must get proof of the right to work in the UK before someone starts working for you. This means you will need ask for proof at some point during the recruitment process. The point at which you ask for this proof is up to you but it makes sense for that point to be as early as practicable.

Step 1. Get original documents

You will get need to obtain original documents from the government’s list of acceptable documents.

Step 2. Check documents

Once you have received original documents, you must check:

  • photographs and dates of birth are consistent across documents and with the person’s appearance

  • expiry dates have not passed

  • any UK Government stamps or endorsements to see if the potential employee is able to do the type of work the company is offering

  • that the documents are genuine and have not been tampered with

  • that any reasons for any difference in names across documents can be explained with evidence, such as a marriage certificate, deed poll or divorce decree absolute

You must also make a record of when these checks were made.

Step 3: Make copies

You must then make copies of all documents provided and store them securely. The copies you take must include:

  • the front cover and all the pages which give the potential employee’s personal details. In particular, the pages with the photograph and signature

  • any page containing a UK Government stamp or endorsement

All copies of documents should be kept securely for the duration of employment and for two years afterwards. At the end of those two years, the copy must then be securely destroyed.

Follow up checks

You will need to carry out follow up checks on those with time-limited permission to work in the UK. These checks should be carried out when their previous permission comes to an end. The process set out above can be used for follow-up checks.

If a person does not have the right to work in the UK

If checks reveal a prospective employee does not have the right to work in the UK, you can withdraw the job offer.

If documents are not supplied

If documents needed for right to work checks are not supplied by a prospective employee, they cannot start work for you.

You may need to delay the person’s start date until the documents are provided.

If the necessary documents cannot be provided at all, you should withdraw the job offer.

Who can ask to see evidence of right to work?

The police and/or immigration officers may ask for proof you have carried out right to work checks on employees. They may also ask to inspect your records.

Avoiding discrimination

You must make sure to avoid discrimination when carrying out right to work checks. You should:

  • follow a consistent process for everyone, including British citizens

  • not make assumptions about a person’s ability to work in the UK or their immigration status

  • ensure people are picked for a job based on their suitability for the role

  • ensure no prospective applicants are discouraged because of pre-employment checks

Digital checks

The government has recommended that employers who choose this second method use the services of a certified identity service provider (IDSP).

The individual will need to provide an image of a valid British or Irish passport, which is then checked digitally by the IDSP.

There is a list of certified IDSPs on the official government website.

Retrospective checks

Some employers have been concerned that they will have to go back and recheck all employees who have already had an adjusted check between 30th March 2020 and 30th September 2022. However, this is not the case. It will be a defence against a civil penalty if the check carried out between those two dates was done in accordance with the guidance on adjusted measures available at the time of the check.

As with all employment issues, it is highly recommended that employers take expert legal advice before embarking on any new policy or procedure.

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