Are Your Right to Work Systems Protecting the Business?

Seeing a passport or immigration document is not necessarily enough. To establish a statutory excuse, an employer must carry out the appropriate right to work check in the prescribed manner and at the correct time.

Different methods apply depending on the worker’s nationality and immigration status.

An employer may need to conduct a manual document check, use the Home Office online right to work service, use an eligible digital verification service, or obtain confirmation through the Employer Checking Service.

Where permission to work is time-limited, the employer may also need to conduct a follow-up check to preserve its statutory excuse.

What Is a Statutory Excuse?

The statutory excuse is important because an employer can potentially employ someone who is later found not to have had the required right to work.

If the employer correctly carried out the prescribed check and maintained any required follow-up checks, the statutory excuse can protect the employer against civil penalty liability for that worker.

A right to work check is therefore not simply an administrative formality. It is an important legal protection for the employer.

Three Main Ways to Check Right to Work

Manual Right to Work Checks

Where a manual check is permitted, the employer must follow the prescribed process rather than simply taking a photocopy of an identity document.

The Home Office process involves obtaining the required original document, checking that it appears genuine and relates to the person presenting it, and making and retaining the required copy.

The employer must also check that the document demonstrates permission to carry out the particular work being offered.

Where the prescribed process is followed before employment begins, it can establish the statutory excuse.

List A & List B Documents

The Home Office divides acceptable manual right to work documents into List A and List B.

Online Right to Work Checks & eVisas

The UK’s immigration system has increasingly moved to digital evidence of immigration status.

Many individuals with an eVisa demonstrate their right to work through the Home Office online service rather than by presenting a physical immigration document.

The worker provides the employer with a share code and date of birth. The employer then accesses the Home Office service and checks the individual’s right to work.

The employer must check that the photograph on the online profile corresponds with the person presenting themselves for work and must verify the nature and any restrictions of the person’s permission.

Do Not Rely on an Expired BRP

Digital Verification for British & Irish Citizens

Employers can use an eligible digital verification service provider to conduct specified right to work identity checks for British and Irish citizens holding qualifying identity documents.

The employer nevertheless retains responsibilities within the prescribed process.

Using a digital provider should therefore form part of a defined compliance procedure rather than being treated as an automatic transfer of responsibility to a third party.

Employer Checking Service

There are circumstances in which an individual may have a continuing right to work but cannot demonstrate it through the ordinary document or online checking process.

This can arise, for example, where the person has an outstanding immigration application, administrative review or appeal and their digital profile does not provide the required evidence.

In appropriate circumstances the employer can request verification through the Home Office Employer Checking Service.

Positive Verification Notice

If the Employer Checking Service confirms that the individual has the right to undertake the work in question, the employer can receive a Positive Verification Notice.

A Positive Verification Notice can provide a time-limited statutory excuse.

The employer should record the expiry of that protection and ensure that any necessary follow-up check takes place at the appropriate time.

Checks Must Take Place Before Employment Begins

Timing is fundamental.

The prescribed initial right to work check must be completed before the person begins employment if the employer wishes to establish a statutory excuse from the outset.

Carrying out a check after employment has already commenced may not retrospectively create the statutory protection that should have been established before the employee started work.

Follow-Up Right to Work Checks

Where an individual has a time-limited right to work, the employer may need to carry out a further check before the existing statutory excuse expires.

This means employers need an effective system for recording immigration expiry dates and identifying cases requiring further checks.

A compliance system that only deals with recruitment but does not monitor time-limited permission can leave the business exposed later in the employment relationship.

A Practical Employer Compliance Cycle

How Long Should Right to Work Records Be Kept?

Current Home Office guidance requires employers to retain evidence of prescribed right to work checks securely throughout the person’s employment and for two years after employment ends.

Records should then be securely destroyed when they are no longer required.

Employers should also consider their wider data protection obligations when storing identity and immigration information.

Check Everyone Consistently

Right to work compliance must also be approached consistently and without unlawful discrimination.

Employers should not conduct checks only on people who appear or sound as though they may be foreign nationals.

The Home Office guidance recommends a consistent checking process for prospective employees, including British citizens.

Recruitment decisions should be based on suitability for the role rather than assumptions about nationality, ethnicity, accent, name or perceived immigration status.

Right to Work Is Not the Same as Right to Do Every Job

An immigration status may permit employment while still imposing restrictions on the type of work, hours or activities the person can undertake.

The employer should therefore check not merely whether the individual has some form of permission to work, but whether they are permitted to undertake the particular employment being offered.

This is particularly important for individuals whose immigration conditions contain restrictions on working hours or types of employment.

Sponsored Workers

Right to work checks and sponsor licence duties overlap but are not the same thing.

An employer sponsoring a worker must comply with the sponsor guidance in addition to carrying out the appropriate right to work check.

Sponsored employers may also have reporting and record-keeping obligations relating to changes in employment, absence, salary, duties and other matters.

See our Sponsor Licence Compliance service.

Right to Work & Skilled Worker Sponsorship

A Certificate of Sponsorship or a successful Skilled Worker application should not simply be treated as a substitute for the employer’s right to work procedure.

The employer should complete the appropriate right to work check before employment begins and maintain its records in accordance with the applicable guidance.

See our Skilled Worker Sponsorship service.

What Changes on 1 October 2026?

This is particularly important for organisations using flexible workforces, contractors and other arrangements outside traditional employment.

Businesses should review their workforce structures and checking procedures before the new requirements take effect.

The current rules continue to apply until the new provisions come into force.

Right to Work Compliance Audit

An internal right to work audit can identify weaknesses before they become a Home Office enforcement issue.

Common Employer Compliance Problems

What Happens If an Employer Gets It Wrong?

Employing a person who does not have the right to undertake the work can expose an employer to substantial financial and regulatory consequences.

Where an employer does not have a statutory excuse, a civil penalty can currently reach £60,000 for each illegal worker.

There can also be wider consequences, including publication of the business’s details by Immigration Enforcement and implications for an employer that holds a sponsor licence.

Where an employer knowingly employs an illegal worker, or has reasonable cause to believe the person does not have the required right to work, criminal sanctions can also arise.

Received a Civil Penalty?

A civil penalty notice should be dealt with promptly.

The notice will identify the alleged illegal working and the amount sought by the Home Office. The employer should review the recruitment records, right to work evidence, immigration status, any online checks or Employer Checking Service responses and the calculation of the proposed penalty.

There are strict time limits for responding.

See our Civil Penalties service.

Right to Work & Sponsor Licence Compliance

For licensed sponsors, illegal-working compliance can have consequences beyond the individual worker.

Failures in recruitment, record keeping or immigration monitoring can also raise questions about whether the organisation is meeting its wider sponsor duties.

Depending on the circumstances, sponsor compliance issues can lead to Home Office investigation and potentially affect the sponsor licence.

See our Sponsor Licence Suspension & Revocation service.

How We Assist Employers

1. Right to Work Audits

We review right to work records and checking procedures to identify gaps in the employer’s statutory-excuse position.

2. Recruitment Procedures

We advise on incorporating compliant right to work checks into recruitment and onboarding procedures.

3. eVisa & Online Checks

We advise employers on digital immigration status, online right to work checks and appropriate record keeping.

4. Time-Limited Permission & Follow-Up Checks

We advise on monitoring immigration permission and maintaining the statutory excuse where further checks are required.

5. Employer Checking Service Cases

We advise where an employee has an outstanding immigration application, appeal, administrative review or other status requiring Home Office verification.

6. Home Office Enforcement & Civil Penalties

Where a compliance problem has already arisen, we advise on the right to work records, statutory excuse, civil penalty position and related sponsor licence implications.

When should an employer conduct a right to work check?

The prescribed initial right to work check should be completed before the person begins employment if the employer wishes to establish a statutory excuse from the outset.

What is a statutory excuse?

A statutory excuse is an employer’s defence against liability for a civil penalty where an individual is found to be working illegally. The employer must have carried out the prescribed right to work check correctly and maintained any required follow-up checks.

Can an employer accept an expired BRP?

Current Home Office guidance confirms that an expired physical Biometric Residence Permit is not acceptable proof for establishing a right to work. The appropriate online or other prescribed checking process should be used.

What is a right to work share code?

A share code allows an employer to access the Home Office online service and view an individual’s immigration status and right to work information where the online service applies.

When should the Employer Checking Service be used?

The service can be relevant where a person cannot demonstrate their right to work through the ordinary prescribed methods, including certain cases involving an outstanding immigration application, appeal or administrative review.

Do right to work checks need to be repeated?

Where a worker has a time-limited right to work, a follow-up check may be required to retain the employer’s statutory excuse. A correctly completed List A check generally provides a continuous statutory excuse for that employment.

How long should right to work records be kept?

Current Home Office guidance requires evidence of the check to be retained securely for the duration of employment and for two years afterwards.

What is the maximum civil penalty for illegal working?

An employer can currently face a civil penalty of up to £60,000 for each illegal worker where the employer is liable and does not have the required statutory excuse.

Should employers only check foreign nationals?

No. Employers should operate a consistent checking process and should not select individuals for checks based on nationality, ethnicity, accent, surname or assumptions about immigration status.

Are the right to work rules changing in October 2026?

Yes. Updated Home Office guidance published in draft is due to take effect on 1 October 2026 and expands the Right to Work Scheme to specified wider working arrangements. Employers using workers and individual subcontractors should review the new requirements before they take effect.

Official Right to Work Guidance

Employers should refer to the Home Office Right to Work Checks: Employer’s Guide.

The Home Office provides an online service to check a job applicant’s right to work.

Where Home Office verification is required, employers can use the Employer Checking Service.

The statutory framework for civil penalties is addressed in the Home Office Code of Practice on Preventing Illegal Working.