The legal requirement
The Immigration, Asylum and Nationality Act 2006 makes it a civil offence to employ a person who does not have the right to work in the UK. The Immigration Act 2014 and subsequent amendments extended penalties and introduced criminal liability for employers who knowingly employ illegal workers.
The duty to check applies to all employees, workers, and labour supplied through agencies or labour providers. It applies from the first day of work - there is no grace period. A verbal assurance from the worker or their agency is not sufficient. You must see and check the required documents before work starts.
Penalties for non-compliance
From 22 February 2024, the civil penalty for employing a worker without the right to work increased significantly:
| Offence | Penalty (from Feb 2024) |
|---|---|
| First illegal worker found - no previous penalty | Up to £45,000 per worker |
| Repeat offence or aggravated case | Up to £60,000 per worker |
| Knowingly employing an illegal worker | Criminal prosecution - up to 5 years imprisonment |
A statutory excuse - a complete defence against the civil penalty - is available to employers who conduct a compliant check before work starts and retain a copy of the document checked. Without a statutory excuse, the employer is liable regardless of whether they were aware the worker lacked the right to work.
Acceptable documents: List A and List B
The Home Office publishes two lists of acceptable right to work documents:
List A - unlimited right to work
A one-time check at the start of employment is sufficient. If a List A document is checked, no repeat check is ever required. Examples include:
- A valid British or Irish passport (or passport card)
- A UK birth or adoption certificate plus an official document showing the National Insurance number (e.g. a P45, payslip, or HMRC letter)
- A certificate of registration or naturalisation as a British citizen
- An EU Settlement Scheme (EUSS) share code confirming settled status
- A Biometric Residence Permit confirming indefinite leave to remain or enter
List B - time-limited right to work
These documents evidence a time-limited permission to work. The employer must repeat the check before the permission expires. Examples include:
- An EU Settlement Scheme share code confirming pre-settled status
- A Biometric Residence Permit with a time-limited work permission
- A visa with permission to work (e.g. Skilled Worker visa, Graduate visa)
- A Home Office letter confirming an ongoing application with the right to work
Post-Brexit note: Since 1 July 2021, EU, EEA and Swiss nationals can no longer use their passport alone as evidence of the right to work. They must evidence their status under the EU Settlement Scheme or via another route. An EU passport remains a valid List A document only when combined with evidence of EUSS settled status.
How to conduct a right to work check
A compliant manual right to work check has three steps:
- Obtain - ask the worker to provide one or more original documents from List A or List B
- Check - examine the document in the presence of the holder to confirm it appears genuine, belongs to the worker, and permits the work you are offering. Check expiry dates, photos, and that the name is consistent across documents
- Copy and retain - make a clear copy of each document page (for passports: the photo page and any visa page), record the date the check was made, and retain the copy for the duration of employment plus two years
The check must be conducted in person (or via video call using a government-approved digital identity service provider - see below). You cannot rely on copies provided by the worker or agency without seeing originals.
Digital right to work checks
For most workers, the government's online checking service at gov.uk/view-right-to-work can be used. The worker generates a share code that you enter into the employer portal. The service returns a real-time confirmation of the worker's right to work status. A screenshot of the confirmed result provides the statutory excuse.
British and Irish citizens who do not have a current UK passport must use manual document checking unless they use a certified Identity Service Provider (IDSP). IDSPs use digital identity verification technology to check documents remotely. The Home Office publishes a register of certified IDSPs.
Repeat checks for time-limited permission
If a worker's right to work is based on a time-limited document (List B), the employer must conduct a repeat check before that permission expires. If the repeat check is not done in time - even by one day - the statutory excuse is lost and the employer becomes liable for any civil penalty.
Managing expiry dates across a large or rotating construction workforce manually is high-risk. A document management system with automated expiry alerts - set to trigger 90, 30, and 7 days before expiry - ensures that no time-limited document is missed.
Supply chain liability
In a construction supply chain, the obligation to check right to work rests with the direct employer of the worker. If you engage a labour agency or subcontractor who supplies workers, you are not required to check those workers' right to work - the agency or subcontractor is, as their employer.
However, there are important caveats:
- If you have reason to know or suspect that illegal workers are on your site, you may lose any protection and face greater scrutiny
- Many principal contractors now require supply chain companies to provide evidence of their right to work compliance as a contractual condition of engagement
- If a labour agency is found to have supplied illegal workers, the Home Office will investigate the agency's clients to determine whether they took sufficient steps to satisfy themselves of the agency's compliance
A robust approach is to require supply chain companies to confirm their right to work compliance process as part of pre-qualification, and to include right to work obligations in subcontract terms.
Record keeping
Copies of right to work documents must be retained for the duration of employment plus two years after the employment ends. For digital checks via the government online service, retain a screenshot of the confirmed result with the date. Copies must be kept securely and in compliance with UK GDPR - right to work documents contain personal data and must not be retained longer than necessary.
Frequently asked questions
Does right to work apply to self-employed subcontractors?
The right to work obligation applies to employees and workers. Whether a self-employed subcontractor falls within this definition depends on the nature of the engagement - specifically whether they are genuinely self-employed or de facto workers. If you engage individuals directly on a labour-only basis and control how the work is done, they may be workers for right to work purposes. Take legal advice if the employment status of your supply chain is unclear.
What if a worker's documents expire during employment?
If a worker's right to work permission is time-limited, you must conduct a follow-up check before it expires. If the check shows the permission has not been renewed, you must stop the worker from working until they can evidence renewed permission - or terminate employment if they no longer have the right to work.
Can I check right to work by video call?
From April 2022, a temporary COVID-era concession allowing video call checks ended. You must now either check documents in person, use the government online checking service (where applicable), or use a certified Identity Service Provider (IDSP) for digital identity verification. The Home Office publishes the current list of certified IDSPs.
How long must I keep right to work documents?
Copies must be retained for the duration of employment plus two years after the worker leaves. The two-year period begins on the date employment ends, not the date the check was conducted.