Right to work procedure

Introduction 

The University is legally required under the Immigration, Asylum and Nationality Act 2006 to verify that any individual who will be undertaking work for the University, regardless of duration and contractual status, is eligible to work in the UK.   

A right to work check is used to establish that an individual has permission to work in the UK and to make sure they are not disqualified from carrying out the work in question by reason of their immigration status. The check must be undertaken prior to the commencement of the individual’s employment. There are no exceptions or waivers to allow an individual to start work without a valid right to work check being in place. 

Failure to conduct a right to work check before employment starts means that the University will not have a statutory excuse against liability for a civil penalty in the event that it is found to have employed someone who does not have the right to do the work in question. It may also result in the University being exposed to both civil and criminal penalties, and may detrimentally impact upon the University’s ability to sponsor migrant workers in future.   

This guide sets out the procedure that must be followed in all instances where an individual is to be directly engaged by the University for employment purposes to verify right to work status and ensure that a statutory excuse is obtained.   

When should the right to work be checked? 

Before commencing work

Right to work must be checked before an individual carries out any work for the University. This means the check must be conducted before the start date of employment. 

If an individual requires a work visa or is awaiting a valid document to confirm their right to work, they must not start work until the visa (or other relevant work documents) is obtained and a right to work check is undertaken. Start dates should be delayed until the valid documentation is in place and the individual’s right to work has been verified. 

When a right to work is due to expire 

If an individual’s right to work is time-limited (i.e. if they have temporary right to work in the UK), a subsequent right to work check must be conducted shortly before the expiry date of the current permission to work.   

When an employee is changing jobs or taking on a second job within the University  

If an existing employee accepts an offer for a new role or for a second job within the University (without breaking their continuous service), a review of their right to work status should be undertaken in advance of them commencing their new role to confirm that the employee does not have visa restrictions preventing them from undertaking the new type of work or from undertaking additional working hours. 

Where a sponsored worker is moving to a new role within the University which requires a change of visa, the new visa must be obtained and a subsequent right to work check completed before the employee can commence employment in the new role. 

How to conduct a right to work check 

Right to work checks must be carried out in the prescribed manner as outlined in Home Office guidance. 

As detailed within this guidance, employers must do one of the following before the employee commences employment in order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally:

• a manual right to work check (applies to all)
• a right to work check using digital identity document validation technology (IDVT) via the services of an Identity Service Provider (applies to British and Irish citizens only)
• a Home Office online right to work check (applies to non-British and non-Irish citizens only) 

Conducting any of these checks as set out in Home Office guidance and in the following code of practice will provide the University with a statutory excuse. 

The University cannot mandate how an individual proves their right to work i.e. we cannot state we will only use the online service, rather we must recognise that the verification route will vary depending on individual circumstance. 

Conducting a manual right to work check

This type of check is suitable for British or Irish nationals who do not have a valid passport (or Irish passport card) or they are unable to verify their identity through digital identity verification via an IDSP (see section below) for another reason OR in instances where an overseas national has an immigration status that cannot be checked via the Home Office online checking service. OR as an initial check on a short-term entry clearance vignette where an overseas national is yet to create their UKVI account to access their eVisa and  allow a check via the Home Office online checking service to be undertaken. 

There are three steps to conducting a manual (in-person) document-based right to work check.  You must complete all three steps, before employment commences, to ensure the right to work is valid. 

Step 1: Obtain 

You must obtain original documents from either List A or B of the acceptable documents at Annex A. 

In specific circumstances – e.g. if an individual is unable to provide an acceptable document(s), or where this is required in addition to seeing the relevant original document - a Positive Verification Notice must be received from the Employer Checking Service. Further details on using the Employer Checking Service are set out below. 

Step 2: Check 

You must check that the documents are genuine and that the person presenting them is the prospective or existing employee, the rightful holder and allowed to do the type of work you are offering. You must check that: 

• photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
• expiry dates for permission to be in the UK have not passed;
• any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
• the documents are genuine, have not been tampered with and belong to the holder; and
• the reasons for any difference in names across documents can be explained by providing evidence (for example, original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained. 

When you are checking the validity of the documents, you should ensure that you do this in the presence of the holder. This can be a physical presence in person or via a live video link. In both cases you must be in physical possession of the original documents. For example, an individual may choose to send their documents to you by post to enable you to conduct the check with them via live video link. You may not rely on the inspection of the document via a live video link or by checking a scanned copy of the document. 

Step 3: Copy & Retain

You must make a clear copy of each document you have checked in a format which cannot manually be altered (such as a JPEG or PDF) and retain the copy securely, either electronically or in hardcopy.   

You must copy and retain copies of: 

1. Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question
2. All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card. 

All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed. 

You must also retain a secure record of the date on which you made the check. This can be by either making a dated declaration on the copy or by holding a separate record, securely, which can be shown to the Home Office upon request. This date may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’ or a manual or digital record may be made at the time you conduct and copy the documents which includes this information.   

If the individual’s right to work status is time-limited (i.e. there is an expiry date attached to this), you must repeat this process in respect of any follow up check. 

Conducting a check using an Identity Service Provider (IDSP) 

Since 6 April 2022, employers have been able to use digital identity document validation technology (IDVT) via the services of an IDSP to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards). 

Digital identity verification conducted by IDSPs is the process of obtaining evidence of the prospective employee’s identity, checking that it is valid and belongs to the person who is claiming it. 

The University works with TrustID, a certified IDSP, for the purpose of obtaining evidence for right to work checks for British or Irish citizens.  Where individuals do not have a current in date passport or are unable to verify their identity through TrustID for another reason, a manual document-based check (as detailed in section “Conducting a manual right to work check” above) will need to be completed.   

The digital identity verification output provided by an IDSP does not in itself establish a statutory excuse against liability for a civil penalty.  To complete the right to work check using this method you must satisfy yourself to a reasonable belief that the photograph and biographic details (for example, date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work (i.e., the information provided by the check relates to the individual and they are not an imposter). This can be done in person or by video call. 

Where names differ between documents, you must establish why this is the case and must not employ that individual unless you are satisfied that the documents relate to them. A statutory excuse will not be obtained where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP. 

You must retain a clear copy of the IDVT identity check output and evidence that the photograph and biographic details have been verified for the duration of employment and for two years after the employment has come to an end. 

Conducting a check using the Home Office online checking service 

A Home Office online right to work check will provide the University with a statutory excuse against a civil penalty in the event of illegal working involving the subject of the check. This type of check applies to individuals who have been granted immigration permission to live and work in the UK and who hold a digital immigration status (eVisa).

You can do an online check by using the online service, entitled ‘Check a job applicant’s right to work: use their share code’ on GOV.UK. 

The online service allows checks to be carried out by video call. You do not need to see physical documents as the right to work information is provided in real time directly from Home Office systems. 

There are three steps to conducting a right to work check using the Home Office online checking service. You must complete all three steps, before employment commences, to ensure the right to work is valid. 

Step 1: Use the Home Office online service 

To use the Home Office online service, an individual is required to provide you with a ‘share code’ to evidence their Right to Work status, which they can generate from the following link: https://www.gov.uk/prove-right-to-work/get-a-share-code-online. The individual may provide the share code to you directly, or they may choose to send this to you via the service. If they choose to send it to you via the service, you will receive an email from [email protected].  Where a share code begins with the letter ‘W’, this will indicate that the share code has been generated by a prospective or existing employee to evidence their right to work. You will not be able to accept or use share codes which begin with the letter ‘R’ or ‘S’ as these are designed for other services.

Appendix 1 explains how an individual can generate their share code. 

To check the individual’s right to work details, you will need to: 

• access the service ‘View a job applicant’s right to work details’ via GOV.UK
• enter the ‘share code’ provided to you by the individual, and
• enter their date of birth
• enter the institution name (University of Dundee) 

It is not sufficient to simply view the details provided to the individual on the migrant part of the service and doing so will not provide you with a statutory excuse. 

In specific circumstances – eg, if the individual presents information which indicates that they have an outstanding application for permission to stay in the UK with the Home Office, which was made before their previous permission expired - a Positive Verification Notice (PVN) must be received from the Employer Checking Service in order to obtain a statutory excuse.  Further details on using the Employer Checking Service are set out below. 

Step 2: Check 

In the presence of the individual (in person or by video call), you must check that the photograph on the online right to work check, is of the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter). 

You must only employ the person (or continue to employ an existing employee, if you are conducting a follow-up check) if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question. 

If the online check details an expiry date, this means that the individuals’ right to work is time limited.  In these circumstances, a follow up check is required to be conducted shortly before the date of expiry to verify the individual’s right to work beyond this date. 

If the online right to work check does not confirm that the individual has the right to work in the UK and do the work in question, you must not employ them in any capacity. 

Step 3: Retain evidence of the online check 

You must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. 

This is the page that includes the individual's photo, the organisation name, reference number and the date on which the check was conducted. You will have the option of printing the profile or saving it as a PDF or HTML file. 

Appendix 2 illustrates examples of results from the online service. 

The ‘profile’ page will indicate if further steps need to be carried out to (e.g. if the individual has a restricted, time limited right to work then the result may indicate that it is necessary to obtain confirmation of their academic term and vacation times).   

The ‘profile’ page should be populated to confirm the date on which the required verification check (detailed in Step 2) was undertaken, and, if further steps were applicable, that these have been carried out.   

You should store this document securely, (electronically or in hardcopy) for the duration of the individual’s employment and for two years afterwards. 

If the individual’s right to work status is time-limited (i.e. there is an expiry date attached to this), you must repeat this process in respect of any follow-up check. 

If a valid up-to-date right to work document is not received on or before the expiry date of the person’s current immigration permission, it may be necessary for the employee’s employment to be terminated. 

However, if there are reasonable grounds to believe that the employee has applied to extend their immigration permission and the application decision is still outstanding at the time of expiry, the University may continue employment for a further 28 calendar days from the expiry date. During this period, a Positive Verification Notice (PVN) must be obtained from the Employers Checking Service (ECS), or a Home Office online check must be completed. Specific advice must be obtained from the People Support team in these circumstances. 

It must be noted that it will not be possible to conduct an online right to work check in all circumstances, as not all individuals will have an immigration status that can be checked online. In circumstances in which an online check is not possible, then a manual check must be conducted (as detailed in section “Conducting a manual right to work check” above). 

When to contact the Home Office Employer Checking Service to verify right to work 

In certain circumstances, you will need to contact the Home Office’s Employer Checking Service (ECS) to establish a statutory excuse. These are when: 

• You are presented with a document (non-digital CoA or an acknowledgement letter or email) confirming receipt of an application to EUSS on or before 30 June 2021.
• You are presented with a non-digital CoA confirming receipt of an application to the EUSS on or after 1 July 2021.
• You are presented with a valid Application Registration Card stating that the holder is permitted to undertake the work in question. Any work will be restricted to employment in a shortage occupation or on the Immigration Salary List.
• You are satisfied that you have not been provided with any acceptable documents by a non-UK/Irish citizen and are unable to carry out a check using the online service, for example due to a technical issue with the individual’s eVisa or digital immigration status.
• The person presents other information indicating that they have an outstanding application for permission to stay in the UK with the Home Office, which was made before their previous permission expired or has an appeal or administrative review pending and, therefore, cannot provide evidence of their right to work.
• You consider that you have not been provided with any acceptable documents, but the person presents other information indicating they are a long-term resident of the UK who arrived in the UK before 1988. 

In the above circumstances, you will establish a statutory excuse only if you are issued with a Positive Verification Notice (PVN) confirming that the named person is allowed to carry out the type of work in question.   

If you receive a Negative Verification Notice (NVN) or an unclear response, contact the People Support team immediately to seek advice. Please note that a Negative Verification Notice may result in immediate cessation of work. 

The Employer Checking Service aims to provide a response within five working days of receiving a valid request. It is your responsibility to inform the person you intend to employ, or continue employing, that you are carrying out this check on them. 

Checking right to work for Student visa holders 

In addition to conducting a right to work checks as detailed above, the University has a responsibility to ensure that overseas students who are employed by the University do not work more hours per week than they are permitted to work under the conditions of their visa.   

Not all student visa holders are entitled to work while they are in the UK. Where a student does have a limited right to work, the working hours that they may undertake will depend on when they applied for permission to come to or stay in the UK, the type of course they are studying and the type of educational provider with whom they are studying. 

Please refer to the University’s guidance “Working during study as Student visa holder” for details on student visa work restrictions which are calculated on a weekly basis.  A ‘week’ is defined in Immigration Rules as “a period of seven days beginning with a Monday”. 

Where it is identified through the right to work check that an individual has conditions attached to their visa in respect of the hours they are permitted to work,  It is the employing department’s duty to monitor that these conditions are adhered to.   

The employing department must keep an up-to-date record of all hours worked each week, the name of the overseas student’s College/University and their academic term dates and holiday dates.  Any additional hours worked elsewhere must also be recorded, and combined with work at the University of Dundee, must not exceed the weekly maximum hours.

Further guidance on these requirements is available from the People Support Team and your local People Partner.