Right to Work Checks for Subcontractors: UK Eligibility & Civil Penalty Avoidance

Summary

Right to work checks are a legal obligation for UK employers under the Immigration, Asylum and Nationality Act 2006. For tradespeople taking on staff, it is one of the most important compliance steps before anyone picks up a tool. Getting it wrong — either missing the check entirely or failing to follow the prescribed procedure — removes the statutory excuse and leaves the business exposed to the full civil penalty.

The checks were simplified during the COVID-19 period (video checks were permitted) and revised again in 2023. The current framework distinguishes between manual document checks, online Home Office checks (for those with online immigration status only), and checks via an Identity Service Provider (IDSP) for British and Irish citizens. Understanding which method applies to each worker prevents costly mistakes.

Key Facts

• Who must do checks — all UK employers before employment begins; "employers" includes sole traders with employees, partnerships, and limited companies
• Subcontractors — if genuinely self-employed (their own business, multiple clients, control over how work is done), you are not their employer and there is no right to work obligation on you; however, the test for genuine self-employment is strict — IR35 applies
• Civil penalty rates (from January 2024) — first breach: up to £45,000 per worker; repeat breach: up to £60,000 per worker
• Criminal liability — knowingly employing someone who doesn't have the right to work is a criminal offence (5 years' imprisonment and/or unlimited fine)
• Statutory excuse — carrying out a correct, compliant right to work check creates a statutory excuse; if the worker is later found to be illegal, the employer is not liable IF the check was done correctly
• Follow-up checks — for workers with time-limited permission (e.g., biometric residence permit with expiry date), a follow-up check must be done before the permission expires; for British/Irish citizens, one check is sufficient
• British and Irish citizens — may use an IDSP (certified digital identity check) OR a manual check (passport, birth certificate + NI card, driving licence + NI letter); cannot use the online Home Office service (that's for non-UK nationals with BRP/eVisa)
• Non-UK nationals — those with a Biometric Residence Permit (BRP), eVisa, or other digital immigration status must be checked using the Home Office online right to work checking service; do not accept physical BRP as sole evidence (Home Office instructions 2022)
• Share code — workers with eVisa/BRP generate a 9-character share code at gov.uk/prove-right-to-work; employer enters this at gov.uk/view-right-to-work with the worker's date of birth
• Record keeping — keep copy of documents for duration of employment PLUS 2 years after employment ends; date-stamp the copy to prove when check was done
• Overseas workers — pre-arrival right to work checks are not possible; check must be done before or on first day of work in the UK

Quick Reference Table

Detailed Guidance

Step-by-Step Manual Document Check

For British and Irish citizens (or overseas workers who may present other acceptable documents):

1. Obtain the original document — the worker presents their original document in person; you cannot accept copies at this stage; post or email is not acceptable for manual checks
2. Check validity — confirm the document is genuine (not expired; not obviously altered; photo matches the person present); for passports, check the MRZ code; for birth certificates, check they are original (not photocopies)
3. Check the worker is the rightful holder — compare the photograph and date of birth with the person in front of you
4. Copy the document — take a clear copy (photograph or photocopy) of every page that carries information, including the photo page
5. Date-stamp or record the date — record when the check was done; the date is part of establishing the statutory excuse
6. Store securely — retain the copy for duration of employment plus 2 years; must be retrievable in case of Home Office inspection

Acceptable document combinations (List B — UK nationals):

• Option 1: Valid UK passport (or UK passport with right to remain stamp)
• Option 2: UK birth/adoption certificate + HMRC tax credit/NI card letter
• Option 3: Full UK driving licence + birth/adoption certificate + HMRC NI letter

Online Home Office Check

Used for all non-British/Irish workers (EU nationals with eVisa; BRP holders; those with other digital UK immigration status):

1. Worker generates a share code — worker visits gov.uk/prove-right-to-work and generates a 9-character share code (valid for 90 days)
2. Employer uses the Employer Checking Service — go to gov.uk/view-right-to-work; enter share code + worker's date of birth
3. Record the result — the service shows the worker's right to work status, photograph, and any expiry date; download or print the result
4. Check expiry — if the status has an expiry date, diarise a follow-up check for before that date

Important: The Home Office online service result (with its printed/downloaded confirmation) creates the statutory excuse — not the worker's physical document. For BRP holders, the worker's BRP photo is presented online as part of the check; you do not need to see or copy the physical BRP card itself. However, it is still good practice to verify the person in front of you matches the photo shown in the online result.

Subcontractors — The Self-Employment Test

The right to work duty applies to employers. It does not apply to a business engaging a genuinely self-employed subcontractor. However, the key question is whether the person is genuinely self-employed.

HMRC's employment status test (IR35/off-payroll working) looks at:

• Control — does the hiring party control what work is done, how, and when? Higher control = more employee-like
• Personal service — does the subcontractor have to do the work personally, or can they send a substitute? Having the right of substitution points to self-employment
• Mutuality of obligation — is the hiring party obliged to offer work and the person obliged to accept? If yes, more employee-like
• Integration — does the person use their own tools and equipment? Do they take financial risk (fixing a price, bearing re-do costs)?

If a subcontractor is determined by HMRC to be employed in substance (despite being paid via invoice), the hiring party can face unpaid PAYE and National Insurance. For large construction firms engaging subcontractors, the CIS (Construction Industry Scheme) applies — this has its own verification requirements.

Practical guidance: Do not assume everyone invoicing as a limited company is outside employment status. Review each working relationship on its facts. For regular or long-term subcontractors, seek advice on their employment status before creating an enforcement risk.

CIS Registration Check

Under the Construction Industry Scheme, any contractor in construction must verify each subcontractor with HMRC before making the first payment. This is a separate obligation from right to work checks:

1. Register as a contractor with HMRC if you pay subcontractors
2. Verify each subcontractor's CIS registration via the HMRC online service or telephone
3. Deduct tax at source: 20% for verified subcontractors; 30% for those not verified
4. Submit monthly CIS returns to HMRC

CIS applies to subcontractors who are self-employed individuals or partnerships. It does not apply to limited companies in the same way (though gross payment status is available). A self-employed subcontractor who cannot be verified with HMRC as CIS-registered will have 30% deducted rather than 20% — this creates an incentive for subcontractors to be registered.

Frequently Asked Questions

I've used the same subcontractor for years. Do I need to redo the check?

If the subcontractor is genuinely self-employed (their own business), you were never required to do a right to work check in the first place. If they are treated as a worker (not self-employed), the check needs to be repeated if their permission to work had an expiry date and that date is approaching.

Can I do the check on day one, before they've actually started?

Yes — checks should be done before the person starts work. You can do the check the morning of their first day, before they begin. Ideally, complete the check before the first day to avoid any doubt.

What if the worker can't provide their documents on day one?

You should not allow the worker to start until the check is complete. If genuine reasons prevent document production on day one (documents held elsewhere, etc.), you may contact the Home Office Employer Checking Service if you believe the worker has the right to work but cannot evidence it immediately. Do not assume — get confirmation before allowing work to commence.

Regulations & Standards

• Immigration, Asylum and Nationality Act 2006 (as amended) — Right to work duty; penalties for illegal employment

• Immigration Act 2014 — Enhanced right to work framework; civil penalty increases

• Home Office Guidance: An Employer's Guide to Right to Work Checks — Updated regularly; check GOV.UK for current version

• Construction Industry Scheme (CIS) — HMRC guidance at gov.uk/what-is-the-construction-industry-scheme

• GOV.UK: Right to Work Checks — Home Office current employer guidance

• GOV.UK: View Right to Work — Online check service for employers

• HMRC: Construction Industry Scheme — CIS overview and obligations

• taking on staff — Full guide to employing your first worker

• self employment tax — CIS and self-employment tax obligations

• gdpr for trades — Data protection when holding employee/subcontractor records

• contracts — Written agreements with subcontractors