Right to work checks: What to do if an individual cannot provide their right to work documents or show their online immigration status
As an employer, you must ensure that your current employees — or any potential hires — are permitted to work for you. The GOV.UK site provides an employers’ right to work checklist, which outlines three types of checks you may conduct to establish an individual’s right to work.
However, there may be circumstances where a current or prospective employee cannot provide you with their right to work documents or a share code for online verification. This may occur if they have an outstanding application, appeal, or review with the Home Office.
This blog will outline the steps you need to take as an employer to determine whether an individual has the right to work while a person has applied and is awaiting a decision from the Home Office.
Employer Checking Service (ECS) – What is it?
In cases where an individual cannot provide you with their right to work document or show their online immigration status due to an outstanding application, appeal, or review with the Home Office, you will need to use the Employer Checking Service. This service allows you to inquire about the individual’s potential immigration status and helps you establish a statutory excuse to allow you to employ the individual concerned.
You can also use this service if an individual cannot show their right to work document or share code if, for example:
- The individual arrived in the UK before 1988 and does not have documents to prove their immigration status or right to work
- The individual is having technical issues getting a share code to prove their right to work
- You, the employer, are unable to use a digital service to check their right to work due to a technical issue
When should I make a request to the ECS?
You should firstly wait at least 14 calendar days after the application, appeal or review has been delivered/posted to the Home Office/the court before making a request to the Employer Checking Service. This is because it could take a little while for most cases to be registered with the Home Office. Sometimes if you wait 14 days after the application has been submitted, your employee’s leave to remain expiry date will have passed. However, as long as your employee has provided you evidence of having submitted an application, you will have a grace period that lasts for 28 days from when their leave to remain expired (see further below), which means you can continue to employ them uninterrupted whilst waiting for a response from the ECS.
You shouldn’t contact the ECS where employment commenced before 29 February 2008 and has been continuous ever since as you will receive a Negative Verification Notice because this employment is out of scope of the civil penalty scheme. This notice does not require you to take action and does not indicate that the individual does not have the requisite permission to work.
What information do I need before submitting a request to the ECS?
Before you submit a request to the ECS, you will need to gather the following information from your current employee/potential employee:
- Full name
- Date of birth
- Nationality
- Job title (or proposed job title)
- The number of hours they work/will work per week
- UK home address
If you are submitting a request as the individual stated that they have an Application Registration Card or Certificate of Application (CoA), you must also see the original version of either of these
You will also need to provide your business name, business type and your contact information as part of the request.
What to expect after submitting a request to the ECS
Upon receiving a valid request, the Employer Checking Service (ECS) aims to provide a response within 5 working days.
You must inform your current or potential employee that you are conducting this check on them.
If you receive a Positive Verification Notice (PVN), it means you have been granted a statutory excuse for 6 months from the date specified in the notice, confirming that the individual is authorized to carry out the type of work in question. The information provided will clearly outline whether a repeat check is required, and if so, when it should be conducted. Therefore, it is your responsibility to keep a record of these dates.
In contrast, a Negative Verification Notice (NVN) is a negative confirmation that the individual does not have the right to work according to the ECS. It is important to note that if you receive this notice, you will not have a statutory excuse.
Additionally, you must keep a record of every document you have checked. GOV.UK provides guidance on retaining evidence.
What to do if my employee’s case has been determined with permission to stay granted?
If, during the 28-day grace period following the expiry of their right to work, or within the 6-month PVN period, your employee informs you that the Home Office has made a decision on their case and granted permission to stay, you will maintain a statutory excuse, which will be valid while you conduct a right to work check in the usual way, provided the outcome confirms they have the right to work in the role for which you are employing them.
What do I do if my current employee or potential employee’s right to work is due to expire soon?
For current employees
For current employees, it is your responsibility to carry out the necessary checks before the expiry date of their right to work. However, if their right to work is about to expire, don’t be alarmed. Your statutory excuse will continue for up to 28 calendar days after the expiry date (also known as the 28-day grace period). During this time, you can use the Employer Checking Service (ECS) to obtain a Positive Verification Notice (PVN) and confirm that you still have a statutory excuse.
Please note that the grace period will end before the 28 days are up if you receive a Negative Verification Notice from the ECS.
Potential employees
The 28-day grace period does not apply to checks carried out before employment commences, meaning that if a potential employee’s right to work has expired/is expiring before they start working for you, you should consider delaying the employment start date until such time you are able to carry out a right to work check or submit a check using the ECS.
Do you have further questions?
We understand that this is a complex area of law and that the consequences of non-compliance with right to work checks can be daunting. OTB Legal are here to help and would be happy to answer any questions you have. Feel free to call, email or book the relevant appointment with us below.
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