How to Check if a Foreign Worker Has the Right to Work in England and Wales

As an employer, you may wish to employ a foreign worker to carry out a role within your business. However, when hiring foreign workers, you need to check that they have the right to work in the country in accordance with data protection laws. This article will explain how to check if a foreign worker has the right to work in England or Wales. 

What is a Foreign Worker?

A foreign worker is a person who works in England or Wales but is not a formal citizen of either country. Instead, they may be residing in the country with no intention of living there long-term but rather to work or carry out a particular time-specific role. 

Checking if a Foreign Worker Can Work for You

You must check if a foreign worker can work for you since it is a requirement of the points-based immigration system in the UK. Serious penalties apply for not checking whether a foreign worker has a right to work in the UK. For not following these legal requirements, you might receive a civil penalty of a maximum of £20,000.

When to Check if a Foreign Worker Can Work for You

If you wish to employ a foreign worker, you must check that they have a right to work in the country. However, you should be aware of some exceptions and rules specific to particular countries.

Irish Citizens

If the foreign worker is an Irish citizen, you do not need to check their right to work in England or Wales. There are no restrictions on Irish citizens working in the UK. However, you need to check that the prospective worker is really an Irish citizen and, therefore, has an unrestricted right to work in the UK. You can identify a foreign worker as an Irish citizen through their Irish passport, passport card or a different form of identification.

European Economic Area (EEA) and Swiss Citizens

If a person is from the EEA or a Swiss citizen and arrived in the UK before 1 July 2021, you are not required to check their right to work in the UK. The EEA includes a person from the EU, Iceland, Liechtenstein or Norway.

If an applicant is from the EEA or a Swiss citizen and arrived in the UK after 1 July 2021, you will need to check their right to work in the UK. These citizens used to be able to prove their right to work in the UK by using their passports or national identity cards. However, this changed on 1 July 2021, meaning they need to use the Home Office online right to work service to prove they have the right to work in the UK.

Ways to Check if a Foreign Worker Can Work for You

There are two main ways you can check if a foreign worker can work for you in England or Wales. These are detailed below.

Home Office Online Right to Work Service

The Home Office online right to work service is a tool that prospective employees can access to prove that they have the right to work for you. Once a prospective worker has accessed this, they can share the results with you. The online request to work service will reveal:

• what types of job the person is permitted to carry out; and
• the length of time they are allowed to work in the UK.

Original Documents

If a prospective employee has not given you a share code, you will need to check the applicant’s original documents regarding their right to work. You should note that, since 6 April 2022, biometric residence cards or permits will not count as documents for the right to work.

Additionally, you must make sure that you:

• request original documents;
• ask the applicant if these are valid;
• check the documents;
• record the date that you saw and checked the documents;
• make a copy of the documents; and
• keep the copy of the documents whilst the person is employed by you and for two years following this.

Due to the coronavirus pandemic, you can check original documents digitally with an adjusted process for doing so. 

When checking the applicant’s documents proving their right to work, you should check that the documents:

• seem genuine, original and have not been amended;
• belong to the applicant;
• contain dates that have not expired;
• contain a consistent date of birth throughout;
• include consistent names throughout and where there are differences, that evidence supports such changes, like through a marriage certificate;
• state that the applicant can carry out the type of work required;
• state that the hours they can work is consistent with what you need; and
• show evidence of studies for students and when holiday dates fall.

Further, when taking a copy of the documents, you should ensure:

• that it is readable;
• that you make a copy of the expiry date and applicant’s details and endorsements when copying a passport;
• you copy both sides of biometric residence permits and biometric format residence cards; and
• make a full copy of documents that are not passports, biometric residence permits or biometric format residence cards.

Key Takeaways

Employing a foreign worker in your business requires you to follow specific rules. Firstly, you must check that they have the right to work in the UK. For example, you can check online where the person offers you a share code or through their original documents. Secondly, you need to know what to check for, such as consistency across documents, and where names have changed, that you have supporting evidence to explain these changes. Thirdly, you need to ensure that you correctly keep copies of documents, such as copying the right pages of a passport.

If you need help checking if a foreign worker has the right to work in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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