To avoid civil penalties and the possibility of criminal prosecution, employers must verify that all of their workforce are eligible to work in the UK. There are several ways that this can be done, including manual document checks and online checks. In some circumstances, when an individual cannot provide the required documentation or digital confirmation, the employer may need to request a Positive Verification Notice from the Home Office by using the Employer Checking Service.
Duty to verify eligibility to work
Changes to the UK Right to Work regime over recent years mean there are now several ways that an individual can prove their eligibility to work.
These include providing a share code to the employer to conduct an online check; conducting digital checks; or providing the employer with certain acceptable documentation, as prescribed within Home Office guidance. A document from List A of the guidance will demonstrate that the holder has an indefinite right to work in the UK without restriction.
If an employee produces a document from List A, such as a British passport, the statutory excuse will apply for the duration of employment.
List B contains documents that demonstrate the holder has a time-limited right to work in the UK.
If an employee produces a document from List B, an employer must conduct follow-up checks when the right to work displayed in the document has expired.
In some cases where the individual cannot provide the required documentation from the relevant list, the employer may have to use the Home Office’s employer checking service to establish the individual’s working status, which may result in a Positive Verification Notice being issued.
What is a Positive Verification Notice?
An employer is required to contact the Home Office and verify that a person had the right to work in the UK, if the individual cannot show their documents or online immigration status. This could be due to:
- a Certificate of Application, less than six months old, indicating that the holder is permitted to undertake the work in question;
- an Application Registration Card, indicating that the holder is permitted to undertake the work in question; or
- no acceptable documents can be produced because the person has an outstanding application with the Home Office or appeal/administrative review against the Home Office.
Where this verification is required, the Home Office’s Employer Checking Service (ECS) can be contacted via their website. The Employer Checking Service is a free online service.
Within five working days, the ECS will respond with either a Positive or Negative Verification Notice.
A Positive Verification Notice confirms that an employee presently has the right to work in the UK. An employer can rely on this document to establish the statutory excuse for the period the Notice is valid.
A Negative Verification Notice confirms that an employee does not have the right to work in the UK.
Any employer that continues to employ a person after receiving a Negative Verification Notice may be liable to civil and criminal penalties.
What is a Negative Verification Notice?
A Negative Verification Notice (NVN) is a letter issued by the Home Office following an Employer Checking Service (ECS) check, informing the employer that an individual does not have the right to work in the UK.
There are a number of reasons why an employee might receive an NVN, including:
- Their visa has expired.
- Their biometric residence permit (BRP) has expired.
- Their status under the EU Settlement Scheme has expired.
- Their right to work in the UK has been revoked.
If you receive an NVN for an employee, you will need to take action. Continuing to employ someone knowing that they do not have the right to work is an offence that can result in civil penalties and criminal proceedings. However, you must ensure that you follow a fair and lawful dismissal procedure, or risk unfair dismissal claims. Take professional advice to ensure you do not fall foul of your employment law obligations.
Pending applications, appeals or administrative reviews
Where an employee has an application, appeal or administrative review pending, their continued right to work will depend on whether they have commenced that process within the prescribed time period.
If a person makes an application to extend or vary their leave to stay in the UK before their current leave expires, any existing right to work will continue until the application is determined. The Home Office will provide a Positive Verification Notice in these circumstances.
Appeals and administrative reviews must typically be made within 14 days of the original decision. If made within that time, any existing permission to work continues during the review period.
Administrative reviews may be heard outside of this time period if the Home Office considers it would be unjust not to do so. Where this occurs, leave to work will continue from the date the administrative review is accepted.
If at any stage an employee can present a document from List A or List B: Group 1, verifying that their application, appeal or administrative review has been determined favourably, then the statutory excuse will be established by checking these documents in the usual way.
Only a prescribed document or a further Positive Verification Notice will establish the statutory excuse. A letter from a solicitor indicating that an appeal or administrative review has been successful is insufficient.
Validity of positive verification notices
In the first instance, where an employee provides an employer with a document that requires a Positive Verification Notice, there is a 28-day grace period where the statutory excuse will continue while the employer contacts the Home Office.
This grace period does not apply to prospective employees that have not yet commenced employment.
In these circumstances, the employment should be delayed until a Positive Verification Notice is received.
If a Positive Verification Notice is received, the employer will be able to rely on the Notice to support the statutory excuse for six months from the date of receipt.
However, as is always the case, if at any time an employer becomes aware that the employee actually does not have the right to work (if, for example, an employee has had their application or review rejected), then the statutory excuse will no longer be valid.
Employers may also face criminal prosecution where they should reasonably have been aware that the employee did not have the right to work.
Need assistance?
We have substantial experience advising employers on right to work compliance and avoiding and appealing civil penalties. If you have any queries about civil penalties or the working status of your employees, please contact one of our team.
Positive verification notice FAQs
What is a Positive Verification Notice?
A Positive Verification Notice is a document issued by UK Visas and Immigration confirming that a worker has the right to work in the UK when they cannot provide standard right to work documents.
When should an employer request a Positive Verification Notice?
Employers should request a Positive Verification Notice when a worker does not have physical proof of their right to work but claims to have applied for a visa extension, settled status, or another immigration application that allows them to work.
How can an employer obtain a Positive Verification Notice?
Employers must use the Employer Checking Service by submitting the worker’s details online. UK Visas and Immigration will then verify the person’s immigration status and issue a Positive Verification Notice if they are eligible to work.
How long does it take to receive a Positive Verification Notice?
It usually takes up to five working days for UK Visas and Immigration to process a request and provide a response.
How long is a Positive Verification Notice valid for?
A Positive Verification Notice is valid for six months. Before it expires, employers must carry out a follow-up right to work check to confirm that the worker remains eligible to work in the UK.
Can a worker start employment before a Positive Verification Notice is received?
No, an employer must wait until they receive confirmation of the worker’s right to work before allowing them to start employment.
What happens if UK Visas and Immigration cannot verify a worker’s status?
If the Employer Checking Service cannot confirm the worker’s right to work, the employer must not proceed with hiring them. Employing someone without the correct right to work evidence can result in civil penalties.
Does a Positive Verification Notice protect an employer from penalties?
Yes, a Positive Verification Notice provides a statutory excuse, meaning the employer is protected from civil penalties if the worker is later found to be working illegally, as long as correct procedures were followed.
Can a worker provide a share code instead of obtaining a Positive Verification Notice?
Yes, if a worker has an eVisa or digital immigration status, they can generate a share code through the UK Visas and Immigration online system. Employers can use this code to verify their right to work without using the Employer Checking Service.
Where can employers access the Employer Checking Service?
Employers can access the Employer Checking Service through the GOV.UK website and submit a request online.
Glossary
| Term | Definition |
|---|---|
| Positive Verification Notice (PVN) | A document issued by UK Visas and Immigration confirming that an individual has the right to work in the UK. |
| Employer Checking Service (ECS) | A UK government service that allows employers to verify a worker’s immigration status when they cannot provide standard right to work documents. |
| Right to Work Check | A legal requirement for UK employers to confirm that an employee has the right to work in the UK before hiring them. |
| Statutory Excuse | Legal protection for employers against civil penalties if they have followed correct right to work check procedures. |
| UK Visas and Immigration (UKVI) | A division of the Home Office responsible for managing immigration and visa applications, including right to work verification. |
| Share Code | A unique digital code provided by a worker that allows employers to check their right to work online through the UKVI system. |
| Biometric Residence Permit (BRP) | A physical card issued to foreign nationals in the UK as proof of their immigration status and right to work. |
| Digital Immigration Status (eVisa) | An online immigration status record replacing physical documents like BRPs, accessed through the UKVI online system. |
| Certificate of Application (CoA) | A document issued to individuals who have applied under the EU Settlement Scheme, sometimes used to prove temporary right to work. |
| EU Settlement Scheme (EUSS) | A scheme allowing EU, EEA, and Swiss citizens to apply for settled or pre-settled status in the UK. |
| Settled Status | Permanent immigration status under the EU Settlement Scheme, granting the right to live and work in the UK indefinitely. |
| Pre-settled Status | A temporary immigration status under the EU Settlement Scheme, allowing individuals to work in the UK with the option to apply for settled status later. |
| Civil Penalty | A fine imposed on employers who fail to conduct proper right to work checks, which can be up to £60,000 per illegal worker. |
| Sponsor Licence | Permission granted by UK Visas and Immigration to UK businesses to hire foreign workers under the Skilled Worker visa route. |
| Certificate of Sponsorship (CoS) | A reference number issued by a licensed employer to a worker applying for a Skilled Worker visa. |
| Follow-up Check | A second right to work check conducted by an employer before a Positive Verification Notice expires to confirm continued work eligibility. |
| Illegal Working Penalty | A fine or legal action taken against employers who knowingly or negligently hire workers without the correct right to work documentation. |
