Section A: What are Right to Work Checks?
A Right to Work check is the prescribed process used by an employer to establish that a prospective employee is permitted to do the work in question in the UK. The check should be completed before employment starts using the method that applies to the individual. Employers also need to retain the required evidence and carry out further checks where the statutory excuse is time limited.
When completed correctly, the check gives the employer a statutory excuse against liability for a civil penalty if the individual is subsequently found to be working illegally. Without a statutory excuse, an employer that employs an illegal worker can face a civil penalty of up to £45,000 for a first breach and up to £60,000 for repeat breaches.
The checking system is now predominantly digital for migrant workers. Most people with immigration permission evidence their status through the Home Office online service using a share code. British and Irish citizens can generally be checked using acceptable physical documents or, where eligible, through a Digital Verification Service. Physical BRPs and BRCs can no longer be accepted as evidence for a prescribed Right to Work check.
| Question | Current position |
|---|---|
| When should the initial check be completed? | Before employment commences. |
| Who should be checked? | Employers should apply a consistent Right to Work checking process to all prospective employees, including British and Irish citizens. |
| How are British and Irish citizens checked? | Using acceptable documents for a manual check or, where eligible, through a Digital Verification Service. |
| How are most migrant workers checked? | Through the Home Office online Right to Work service using a share code. |
| Are follow up checks required? | Where the statutory excuse is time limited, a further check will generally be required before it expires, subject to the provisions for outstanding applications, appeals and administrative reviews. |
| How long should Right to Work evidence be retained? | For the duration of employment and for two years after employment ends. |
| What is the maximum civil penalty? | Up to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. |
| What changes on 1 October 2026? | The Right to Work scheme expands to cover additional working arrangements beyond conventional employment. |
1. Who needs a Right to Work check?
Employers should carry out Right to Work checks consistently on all prospective employees. This includes British and Irish citizens as well as people who require immigration permission to work in the UK. Applying the same process consistently also reduces the risk of unlawful discrimination by avoiding assumptions about a person’s right to work based on nationality, appearance or other characteristics.
The method of checking will depend on the individual. British and Irish citizens can be checked manually using acceptable documents or, where eligible, through a Digital Verification Service using Identity Document Validation Technology. Workers whose immigration status is held digitally will normally be checked using the Home Office online service and a share code. Where a person cannot evidence their right to work through the prescribed online or manual routes, the Employer Checking Service may need to be used.
The correct method is important: A worker may have valid permission to work but the employer can still fail to establish a statutory excuse if it does not complete the prescribed check.
2. When should Right to Work checks be completed?
The initial check needs to be completed before employment commences. Completing a check after the individual has started does not retrospectively establish a statutory excuse for the earlier period.
Some checks provide a continuous statutory excuse, meaning no further Right to Work check is required during that employment. Others provide a time limited statutory excuse and require the employer to carry out a further prescribed check before the excuse expires.
Different provisions apply where an existing employee has made an in-time application, appeal or administrative review. Their continuing right to work may be capable of verification through the Home Office online service or Employer Checking Service. Home Office guidance also provides a temporary 28-day extension of the existing statutory excuse in certain circumstances while the employer obtains the required verification.
3. What happens if a Right to Work check is not compliant?
Failure to complete a prescribed check does not itself mean that the individual is working illegally. It can, however, leave the employer without a statutory excuse if the person is subsequently found to be working illegally.
The maximum civil penalty is £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches. Employers also need to distinguish civil penalty liability from the separate criminal offence of employing someone they knew or had reasonable cause to believe was disqualified from the employment because of their immigration status. A statutory excuse does not protect an employer from that criminal offence where the relevant knowledge or reasonable cause exists.
Licensed sponsors face additional risk. Illegal working findings can lead to sponsor compliance action, including suspension or revocation in sufficiently serious cases, with wider consequences for the organisation’s ability to recruit and retain sponsored workers.
4. Right to Work Changes from 1 October 2026
The scope of the Right to Work scheme is due to expand from 1 October 2026. Until then, the existing civil penalty scheme remains focused on individuals who fall within the current statutory definition of employment. Employers therefore need to distinguish between the rules in force now and the wider regime that will apply to relevant working arrangements commencing from 1 October 2026.
From 1 October 2026, the scheme will extend beyond conventional employees to cover individuals working under a worker’s contract, individual subcontractors and certain arrangements involving online matching services. Businesses operating casual labour models, subcontracting structures or platform-based arrangements will therefore need to consider whether people who previously fell outside the civil penalty scheme will come within the expanded checking requirements.
The change is particularly relevant where a business obtains labour through arrangements that do not amount to a traditional contract of employment. It does not mean that every person providing services as an independent business will automatically fall within the scheme. The nature of the working arrangement will need to be assessed against the provisions applying from 1 October.
Employers using agency labour, individual subcontractors, casual workers or online labour platforms should review their arrangements before the new regime takes effect. That review should identify who is responsible for engaging the individual, which relationships will fall within the expanded scheme and where Right to Work checks will need to be incorporated into existing onboarding and supply chain processes.
The revised Right to Work discrimination Code will also apply from 1 October 2026, including to relevant checks carried out under the expanded scheme. Employers introducing new checking processes will therefore need to apply them consistently and avoid assumptions about a person’s right to work based on nationality, ethnicity or other protected characteristics.
5. Additional Right to Work duties for sponsors
Licensed sponsors have additional record keeping duties under Appendix D. Current sponsor guidance, valid from 3 August 2026, requires sponsors to retain evidence of a Right to Work check for workers they employ, whether sponsored or not.
Where a sponsor is sponsoring a worker who is employed by another organisation in circumstances permitted by the sponsor guidance, the employing organisation is responsible for carrying out the Right to Work check for the purpose of establishing a statutory excuse. The sponsor must, however, either obtain and retain a copy of that check or carry out its own check to meet its sponsor record keeping duties.
The statutory excuse and sponsor record keeping duties therefore need to be distinguished. Where the sponsor is also the employer, a compliant Right to Work check may serve both purposes. Where the sponsor is not the employer, retaining or carrying out the check can still be required for sponsor compliance even though the statutory excuse is relevant to the employing organisation.
DavidsonMorris Strategic Insight
Right to Work compliance starts with knowing who needs to be checked, which method applies and when a further check will be required. The move to digital status has changed the mechanics of checking, while the changes from 1 October 2026 will widen the range of working arrangements that businesses need to consider.
Employers should use the period before October to identify workers and labour arrangements that sit outside their current employee checking process. For businesses using subcontractors, casual labour or platform workers, the immediate question is whether existing onboarding systems will capture the people who come within the expanded regime once it takes effect.
Section B: Types of Right to Work Checks
Right to Work checks now operate across three separate methods. Each method has strict rules, specific evidence requirements and limited situations where it can be used. The Home Office does not treat these methods as interchangeable. Using the wrong one may mean the statutory excuse is not created even if the worker has valid status. Many civil penalties arise not because employers ignore the rules but because staff apply the wrong method for the worker in front of them or blend elements of different methods. The Home Office expects employers to understand which method applies, complete it correctly and retain evidence that can withstand scrutiny during any digital or onsite audit.
The transition to digital immigration status has made the online check the default for most migrant workers. Manual checks continue but apply to a smaller set of acceptable documents. Identity Document Validation Technology introduced a parallel route for verifying eligible British and Irish citizens. The variety of methods creates risk, particularly in organisations where recruitment is decentralised or staff rely on outdated assumptions. This section explains each method clearly, the evidence involved and how employers should decide which method applies.
| Worker type / status | Correct Right to Work check method | Evidence you need on file | Follow up check required? |
|---|---|---|---|
| British citizen with current or expired passport | Manual check or, where they hold a valid British passport, a Digital Verification Service using Identity Document Validation Technology | Copy of passport details page with clear check date or DVS output and employer identity match record | No, continuous statutory excuse once check is valid |
| Irish citizen with current or expired passport or passport card | Manual check or, where they hold a valid Irish passport or passport card, a Digital Verification Service using Identity Document Validation Technology | Copy of passport or passport card with check date or DVS output and employer identity match record | No, continuous statutory excuse once check is valid |
| Worker with eVisa or other digital immigration status | Online Right to Work check using share code | Saved online profile showing name, photo, permission to work and date the check was completed | Yes, if the statutory excuse is time limited |
| EU, EEA or Swiss citizen with status under the EU Settlement Scheme | Online Right to Work check using share code | Saved online profile with photo, settled or pre settled status and check date | No follow up check currently required where the initial check was completed correctly |
| Sponsored worker with digital Skilled Worker or other points-based system status | Online Right to Work check using share code | Saved online profile confirming permission, any relevant work restrictions and check date | Yes, if the statutory excuse is time limited |
| Worker with acceptable documents from List A | Manual document check | Clear copy of all relevant document pages with the date of the check recorded | No, continuous statutory excuse once check is valid |
| Worker with acceptable documents from List B | Manual document check, where the relevant document remains acceptable for a prescribed manual check | Copy of documents with check date and record of the applicable permission period | Yes, further check required before the time limited statutory excuse expires |
| Worker with an in time application, appeal or administrative review pending | Online Right to Work check where continuing permission can be verified digitally, or Employer Checking Service where required | Saved online Right to Work profile or Positive Verification Notice, as applicable | Yes, another check before the relevant statutory excuse expires |
| Agency or contractor worker who is your employee | Same method as for any other employee, depending on their nationality and immigration status | Your own compliant Right to Work evidence matching the correct method | Yes, if the statutory excuse is time limited |
1. Online Right to Work checks
The online check is now the standard method for verifying most migrants because physical documents no longer prove status in many categories. Workers whose right to work is evidenced through digital immigration status must use the Home Office online service. The employer enters the worker’s share code and date of birth into the portal, views the individual’s profile and verifies that the photograph matches the person presenting themselves. The profile sets out whether work is permitted and lists any restrictions. Employers need to read these carefully, particularly for sponsored workers and candidates with time limited permission.
The online check applies to anyone who holds:
a. digital eVisa status b. status under the EU Settlement Scheme c. a digital Frontier Worker permit d. digital permission under the points-based immigration system e. immigration status previously evidenced by a BRP or BRC that is now held digitally f. digital status granted following a recent application
Physical BRPs and BRCs are no longer acceptable evidence for the prescribed Right to Work check. Workers often continue presenting physical BRPs or BRCs because they still hold the expired card, but employers who rely on them do not establish a statutory excuse. The worker should instead provide a share code so the employer can complete the online check.
Identity verification remains the employer’s responsibility. The share code only unlocks the profile. It does not confirm identity. Employers must satisfy themselves that the person presenting themselves for work is the individual shown in the online profile, whether this is done in person or by video call.
Once the profile has been checked the employer must save evidence of the online check, including the photograph, the date of the check and the status information. The evidence must be retained in a format that allows the employer to demonstrate that the prescribed check was completed. Evidence must be stored securely and retained for the duration of employment and two years after.
Workers with a time limited statutory excuse require follow up checks. Employers need reliable tracking processes because missed follow up checks can result in the employer losing that excuse. The online system does not send reminders. It is the employer’s responsibility to monitor relevant expiry dates.
Where a worker cannot evidence their continuing right to work through the online service, such as in certain cases involving a pending application, employers may need to use the Employer Checking Service. An unsuccessful attempt to use the online service does not itself establish a statutory excuse.
2. Manual Right to Work checks
Manual checks remain lawful but now apply only to the acceptable documents set out in the Home Office’s List A and List B. These lists specify which documents establish a continuous statutory excuse and which establish a time limited one. Employers must not accept documents outside these lists. Workers often present documents that look official but are not acceptable. Accepting them does not establish the statutory excuse.
Manual checks apply to:
a. British citizens using current or expired British passports b. British citizens using birth or adoption certificates with the required National Insurance evidence c. Irish citizens using current or expired passports or passport cards d. Limited groups holding other types of documentation that remain acceptable under the Home Office lists
For British and Irish citizens employers may use manual checks, though many now choose a Digital Verification Service because it supports remote recruitment and reduces document handling. However manual checks still need careful execution. Employers must view the original documents, examine them for authenticity and verify identity either in person or through a live video link while the employer physically holds the original document.
The employer must make clear and legible copies, including all relevant passport pages and endorsements where required. The copies must include the date the check was carried out. Missing dates remain one of the most common errors. For List B documents the employer must track the period of the statutory excuse and complete follow up checks where required before that excuse expires. Manual tracking systems such as spreadsheets are prone to omissions, so employers should consider digital alternatives.
Manual checks cannot be used where the individual is required to evidence their status through the Home Office online service. Printed emails, photographs of documents or physical BRPs and BRCs are not acceptable substitutes. Employers should direct digital status holders to generate share codes.
3. Identity Document Validation Technology checks
Identity Document Validation Technology allows employers to verify the identity of eligible British and Irish citizens with valid passports or passport cards through a Digital Verification Service. The provider checks the document and the identity of the individual. This method reduces the need to handle original documents, particularly in remote recruitment.
This method applies to:
a. British citizens with valid passports
b. Irish citizens with valid passports
c. Irish citizens with valid passport cards
It cannot be used to establish a statutory excuse for other nationalities or migrant categories. The digital process verifies the identity and qualifying British or Irish document relied on for the check.
The employer must still complete the final identity match. The provider’s output does not replace this requirement. Employers must satisfy themselves that the person presenting themselves for work is the same person whose identity has been verified by the provider, either in person or by video call.
Employers must retain the required evidence from the provider and evidence sufficient to show that the prescribed check was completed. Current Home Office guidance recommends using a provider certified against the government digital identity framework, but use of a certified provider is not currently mandatory for establishing the statutory excuse. Employers should, however, ensure that any service used is capable of meeting the requirements of the prescribed digital check.
4. When each method applies
Method selection is not optional. Employers need to categorise the worker correctly at the outset.
Digital status holders whose right to work is evidenced through the Home Office online service must use the online check. This includes eVisa holders and those with EU Settlement Scheme status. Employers should ask the worker early and guide them through generating a share code.
British and Irish citizens can be checked manually using acceptable documents or, where they hold an eligible valid passport or passport card, through a Digital Verification Service using Identity Document Validation Technology. Employers should adopt a clear process and train staff accordingly.
Workers with remaining acceptable physical documents may use manual checks. These categories are diminishing as the Home Office digitises more forms of status, so employers need to keep guidance up to date.
Workers with pending applications, appeals or administrative reviews may be able to evidence their continuing right to work through the online service. Where that is not possible and the circumstances fall within the relevant Home Office criteria, the Employer Checking Service should be used.
Employers must not mix methods in a way that fails to meet the prescribed requirements. An incorrect check does not retrospectively become compliant merely because the employer later discovers that the worker had permission to work. A statutory excuse depends on the employer carrying out a prescribed check at the required time.
5. Which Type of Check?
Selecting the correct checking method is one of the most important parts of Right to Work compliance. The Home Office does not treat the different methods as interchangeable. A check completed using the wrong method may not create a statutory excuse, even where the worker ultimately had permission to work.
Employers should first establish whether the worker holds digital immigration status, acceptable physical documents or requires verification through the Employer Checking Service. Digital status holders whose right to work is evidenced through the Home Office service must be checked online using a share code. British and Irish citizens may be checked manually or, where eligible, through a Digital Verification Service using Identity Document Validation Technology. Workers with pending applications, appeals or administrative reviews may be able to use the online service or may require the Employer Checking Service.
Problems often arise where employers rely on outdated assumptions or worker preference rather than confirming the correct method. Common examples include accepting physical BRPs, carrying out manual checks where an online check is required or attempting to combine different checking methods in a way that does not satisfy the prescribed process. None of these approaches establishes a statutory excuse unless the applicable requirements are met.
Consistency is important. Employers should use a clear internal process that helps staff identify the correct method at the outset and escalate unusual cases where necessary. During audits, UKVI may review whether different teams and sites apply the same approach in practice and whether the evidence retained matches the method used.
DavidsonMorris Strategic Insight
Time was, employers only had to carry out manual checks of certain documents. Now, as the Home Office moves to digital systems, employers are dealing with a range of different Right to Work check types, with the correct choice depending on factors such as how the individual’s status is held. Risk thrives within that choice. Most employers focus on “doing the check” but pay less attention to whether the method actually matches the worker’s underlying status. That mismatch can leave the employer without a statutory excuse and, for sponsors, raise serious questions about whether staff understand their core duties.
The prevalence of digital systems also makes it easier for caseworkers to compare the worker’s status with the evidence held by the employer. They may not need to visit your site to identify discrepancies between the status recorded by the Home Office and the checking evidence you have retained.
Section C: How to Conduct Compliant Right to Work Checks
A compliant Right to Work check is a legal process with defined steps the Home Office expects employers to follow. It is not an informal glance at documents or a quick look at a digital profile. The statutory excuse only exists if the employer completes the correct prescribed method at the correct time and retains the required evidence. Caseworkers may analyse timing, sequencing, identity verification, evidence quality and method selection. Weaknesses in these areas can leave an employer without a statutory excuse and, for sponsors, may lead to wider compliance scrutiny. Employers therefore need a stable, structured and repeatable process that staff understand and follow precisely.
Checks fall into three categories: online checks for digital status holders, manual checks for a narrow group of acceptable documents and Identity Document Validation Technology checks for eligible British and Irish citizens. Before a check begins the employer must establish which method applies. Once identified, the employer must follow that method correctly. The Home Office does not allow elements to be mixed between methods in a way that fails to satisfy the prescribed requirements. This section outlines how each method works, how employers should prepare, and the common points where mistakes occur.
1. Preparing for the check
Most errors start before the check even begins. Preparation involves identifying the correct checking method and ensuring that the person responsible is trained, resourced and able to complete the process properly.
The employer should ask the worker simple, direct questions to determine whether they hold digital status, whether the documents they intend to rely on fall within the manual lists or whether a Digital Verification Service using Identity Document Validation Technology is available. Relying on a worker’s assumption about their own status is risky. Workers may not realise their status is now held digitally or may not understand that certain physical documents are no longer acceptable for the prescribed check.
If the worker needs a share code, they should generate it as early as possible. A share code lasts 90 days, so there is no disadvantage in obtaining it well before the planned start date. Early preparation prevents delays at the point of onboarding.
If a manual check is required, the worker needs to be told which documents are acceptable. Workers frequently present incorrect documents and can become frustrated if this is identified on the day of the check. Clear guidance at the outset prevents this.
If a Digital Verification Service will be used, the employer needs to ensure that the passport or passport card is valid and that the worker can complete the verification process promptly.
Staff conducting the check should have access to the online portal, secure storage systems and functioning video technology if the identity verification element will be completed remotely. If the employer cannot meet the practical requirements, the check cannot be completed properly.
2. Completing an online check
The online check is now the primary method for migrant workers because most immigration categories rely on digital status. The process must follow the Home Office requirements.
The worker generates a share code and provides it to the employer. The employer enters the code and the worker’s date of birth into the online portal. The system will display the worker’s digital profile. The employer must verify identity by comparing the digital photograph with the individual, either in person or by video call. This is a core part of the check. Employers who skip this step or who rely solely on the share code may fail to establish the statutory excuse.
The employer must then confirm that the displayed conditions allow the role being offered. Sponsored workers may have restrictions on the work they are permitted to undertake, and some immigration categories impose specific employment conditions. If the role does not align with the permission shown, the employer cannot rely on the check to establish that the work is permitted.
The employer must save evidence of the online check, including the photograph, the status information and the date the check was completed. The record must be retained in a form that allows the employer to demonstrate that the prescribed check was carried out. Evidence must be stored securely and remain accessible for audits.
Workers with a time limited statutory excuse require follow up checks. Employers must record the relevant expiry date and ensure a further prescribed check takes place before the statutory excuse expires, subject to the separate rules that apply where an in-time application, appeal or administrative review is outstanding. The Home Office does not issue reminders. Tracking systems must be maintained internally.
If a worker cannot evidence their continuing right to work through the online service, the Employer Checking Service may need to be used. An unsuccessful attempt to complete an online check does not itself create a statutory excuse.
3. Completing a manual check
Manual checks apply only to documents listed in List A and List B. Employers must examine original documents, either in person or via a live video link while physically holding the original documents.
The employer must check that the documents appear genuine, have not been tampered with and belong to the worker. They must examine photographs, dates of birth and any relevant expiry dates or endorsements. Any concerns should be raised and resolved before the employer relies on the check.
The employer must then make clear, legible copies of the relevant pages. For passports this includes the personal details page and any pages containing relevant immigration endorsements where applicable. The copy must show the date the check was completed. Missing dates can prevent the employer from demonstrating that the prescribed check was carried out correctly.
If the worker relies on List B documents the employer must identify how long the statutory excuse lasts and schedule a follow up check where required. Manual tracking systems are prone to omissions, so employers should consider digital tools to reduce risk.
Manual checks cannot be used where the person is required to evidence their right to work through the Home Office online service. Printed emails, photographs of passports or physical BRPs and BRCs are not acceptable substitutes. Employers should direct digital status holders to generate a share code.
4. Completing an Identity Document Validation Technology check
Identity Document Validation Technology checks allow employers to verify eligible British and Irish citizens using a Digital Verification Service. This method supports remote recruitment and reduces the need to handle original documents.
The worker completes the verification steps through the provider, which checks the qualifying passport or passport card and verifies the individual’s identity. The provider then issues the relevant output. This output alone does not complete the employer’s prescribed check. The employer must still satisfy themselves that the person presenting themselves for work is the same person whose identity has been verified by the provider.
The employer must retain the required provider output and evidence sufficient to demonstrate that the prescribed check was completed. Current Home Office guidance recommends use of a provider certified against the government digital identity framework, but use of a certified provider is not currently mandatory for establishing the statutory excuse. Employers should nevertheless ensure that the service used is capable of meeting the applicable Home Office requirements.
Identity Document Validation Technology cannot be used to establish a statutory excuse for migrant workers who need to evidence immigration permission through the Home Office online service.
5. Managing follow up checks
Follow up checks are required where an employer has a time limited statutory excuse. Employers must track the relevant expiry date accurately and ensure the appropriate further check is completed before the excuse expires, subject to the special provisions that apply where an existing employee has an outstanding in-time application, appeal or administrative review.
Where an existing employee makes an in-time application to extend or vary their permission, their immigration permission and right to work may continue under section 3C of the Immigration Act 1971 while the application is pending. The employer may be able to verify that continuing right to work through the Home Office online service. Where that is not possible, the Employer Checking Service may be required.
Home Office guidance also provides a temporary 28-day extension of the existing statutory excuse in certain circumstances where the employer is reasonably satisfied that the employee has made an in-time application, appeal or administrative review and is taking steps to obtain the prescribed verification. Employers should use that period to complete the required online check or obtain a Positive Verification Notice where applicable.
Communication with workers is important. They should understand that continued employment may depend on the employer being able to verify their continuing right to work within the applicable Home Office framework.
| Scenario | Deadline for the check | What creates protection | What happens if missed |
|---|---|---|---|
| New hire with any immigration status | Before employment commences | Correct prescribed method completed in full and evidence retained with the check date | The employer may have no statutory excuse if the individual is subsequently found to be working illegally |
| Worker holds digital status and provides a share code early in the process | Before employment commences | Compliant online Right to Work check completed while the worker’s permission is valid | If no prescribed check has been completed before employment starts, the employer may have no statutory excuse |
| Worker with time limited permission | Further check required before the time limited statutory excuse expires, subject to the rules for outstanding applications, appeals or administrative reviews | New online check, compliant manual evidence where applicable or a Positive Verification Notice | The employer may lose the statutory excuse if a required follow up check is not completed, although this does not itself mean the worker is working illegally |
| Existing worker with an in time application, appeal or administrative review pending | Within the applicable period allowed by the Home Office framework for maintaining the statutory excuse | Online Right to Work verification or Positive Verification Notice, as applicable, including use of the temporary 28-day statutory excuse where the requirements are met | The employer may lose the statutory excuse if continuing permission is not verified within the applicable period |
| Worker using a physical document under List A or List B | Before employment begins and while the document is acceptable for the prescribed manual check | Clear and complete copy of the original document with the date of the check recorded | The employer may fail to establish a statutory excuse if the prescribed manual check requirements are not met |
| Worker whose share code fails or cannot be generated | Before employment begins, or within the applicable follow up period for an existing employee | Correct prescribed method identified and completed, whether through the online service, a manual check where permitted or the Employer Checking Service | Proceeding without completing a prescribed check may leave the employer without a statutory excuse if the worker is later found to be working illegally |
6. Record Keeping
Evidence supporting the statutory excuse must be stored securely for the duration of employment and for two years after it ends. Employers should retain the prescribed evidence in a form that can be produced if requested by the Home Office.
Licensed sponsors also have separate record keeping duties under Appendix D. Those sponsor duties need to be distinguished from the general Right to Work record retention requirements. Where the sponsor is also the employer, the same Right to Work evidence may be relevant to both regimes, but the applicable retention periods are not identical in every case.
Evidence should be stored in structured digital systems with controlled access. It should not be stored on personal computers, email accounts or shared folders that are not actively managed. Employers should be able to retrieve evidence promptly if the Home Office requests it.
Evidence should be retained in an appropriate format that preserves the record of the prescribed check. For online checks, the Home Office permits the profile to be printed or saved electronically. For manual checks, clear copies should be kept in a format that allows the employer to show what was checked and when.
When the applicable retention period ends, evidence should be destroyed securely. Employers may also choose to maintain a destruction log as part of their internal governance arrangements, although this is not a general Home Office requirement.
DavidsonMorris Strategic Insight
We often see illegal working findings where recruitment processes buckle under operational pressure. It’s rarely that employers, HR or managers don’t know the rules, the real problem is that poor decision making and practices can creep in when there is an impending start date and commercial pressure to get someone working. Caseworkers may test how the organisation’s processes operate in those situations, looking for signs that controls are being bypassed when the business is under strain.
You need a workflow where the check is structurally difficult to bypass, where evidence is captured in a standard way and where follow up responsibilities are assigned to defined roles rather than individuals to give you a defensible position if the Home Office starts asking questions.
Section D: Common Right to Work Mistakes
Right to Work compliance rarely collapses because an employer disregarded the rules altogether. Problems usually start with ordinary decisions made under time pressure, where staff rely on habit or convenience and drift away from what the Home Office guidance actually expects. Caseworkers may focus on these departures from process because they can show how an organisation operates in practice. Once a weak check is identified the Home Office may widen its view and look at whether similar issues appear elsewhere.
Many of the failings that can leave an employer without a statutory excuse look minor at the time. A check completed the day after a worker starts because they seemed low risk. A share code used without properly verifying the individual’s identity. A physical BRP accepted because the worker insists it is still valid. A follow up check missed because everyone assumed the visa had been renewed. Each of these examples can cut across the prescribed checking requirements. The good news is that they are predictable, which means they are also preventable if employers put the right controls in place.
1. Mistakes with timing and sequencing
The most common error is timing. Checks are required before employment commences. If the prescribed check takes place only after employment has started, it does not retrospectively establish a statutory excuse for the earlier period, even if the worker later turns out to have valid status.
Sequencing creates similar problems when a time limited statutory excuse is approaching expiry. If a worker has made an in-time application, appeal or administrative review, their continuing right to work may be capable of verification through the Home Office online service or, where required, the Employer Checking Service. For an existing employee, Home Office guidance also provides a temporary 28-day extension of the existing statutory excuse in certain circumstances where the employer is reasonably satisfied that the employee has made an in-time application, appeal or administrative review and is taking steps to obtain the prescribed verification. Relying simply on an expired BRP or a promise that an application has gone in is not sufficient.
To avoid these issues, build the check into the earliest stage of onboarding and lock it into your process so employment cannot start until evidence is on file. That can be as straightforward as system controls that prevent IT access or payroll set up without a recorded check date. For renewals, avoid relying on staff diaries. Use a central tracking system that flags relevant expiry dates well in advance and ties responsibility to a named role rather than to the worker or individual managers.
2. Mistakes with method selection
Civil penalty exposure can arise where the wrong checking method was used and the individual is subsequently found to be working illegally. Typical examples include accepting physical BRPs, carrying out manual checks where an online check is required or trying to combine different methods in a way that does not meet the prescribed requirements. The Home Office expects employers to use a correct method that matches the evidence available for the worker at the time of the check.
Identity Document Validation Technology is another area where errors arise. It can be used as part of a digital check for eligible British and Irish citizens with valid passports or passport cards. It cannot be used to establish a statutory excuse for other nationalities or migrant workers who need to evidence their immigration permission through the Home Office online service.
Prevention here relies on two things. First, a clear internal decision tree that staff follow every time, starting with basic questions about nationality and how the person’s status is held. Second, regular training that explains recent changes, such as the move away from BRPs, so staff do not rely on what used to be acceptable. When a worker offers documents that do not fit the correct method, the process should direct staff to escalate or push back rather than improvise.
3. Mistakes with evidence retention
Another common pattern is that the check itself is done correctly but the evidence is incomplete or difficult to retrieve. Online profiles saved without the required information, unclear passport copies or documents buried in personal inboxes can make it difficult or impossible for the employer to demonstrate that a prescribed check was completed. If the employer cannot produce the required evidence, it may be unable to establish the statutory excuse.
Avoiding this comes down to discipline and system design. Evidence needs to be saved in an appropriate format, in a single agreed location, against the correct person’s record, and it needs to show the elements the guidance requires, including when the check was carried out. A centralised digital storage system usually works best. Local folders, paper files or ad hoc saving habits increase the risk of missing evidence. Routine file reviews or internal spot checks will show quickly whether staff are following the agreed approach or whether gaps are appearing.
4. Mistakes with identity verification
Identity is where many checks quietly fail. The online service confirms a person’s immigration status and displays their photograph, but the employer still needs to satisfy themselves that the person presenting themselves for work is the same individual shown on the profile. If the photograph comparison is rushed or skipped altogether the prescribed checking requirements may not be met. The problem is amplified in remote hiring when video quality is poor or when staff rely on a screenshot rather than making the required identity comparison.
Identity Document Validation Technology creates similar risks if the employer treats the provider’s output as the end of the process. The employer still needs to satisfy themselves that the person who presents for work is the same individual whose identity has been verified by the provider.
The fix is to treat identity as a distinct step in the process. Staff should deliberately compare the individual with the photograph or identity information produced through the relevant checking method, whether the person is present physically or remotely where the applicable process permits this. If there is any doubt, the process should require escalation and a pause on onboarding until the discrepancy is resolved. Training should include practical examples so staff understand what a genuine verification looks like in practice.
5. High risk scenarios in daily recruitment
Certain situations repeatedly give rise to mistakes. Short notice hires increase the temptation to let someone start employment before checks are complete. Remote hiring makes it easier for staff to rely on screenshots or scans instead of following the full process. Long serving staff can lose their continuing right to work if no one is tracking time limited permission and the necessary follow up checks. Agency and supply chain arrangements are another risk where businesses assume someone else has dealt with immigration compliance without understanding which organisation is the employer or what separate sponsor duties may apply.
The practical way to manage these scenarios is to treat them as known risks and design specific controls around them. For urgent hires, the rule should be that no start date is confirmed until the prescribed check is completed and evidence is saved. For remote hiring, employers should follow the requirements of the applicable checking method rather than accepting documents sent informally by messaging apps or personal email as a substitute. Where workers are supplied by an agency or another contractor, employers should establish who employs the individual and ensure contractual and compliance arrangements address Right to Work responsibilities. Licensed sponsors also need to consider the separate Appendix D requirements where they sponsor a worker who is employed by another organisation. For sponsored and time limited staff, central tracking and early renewal planning are non negotiable if you want to avoid expiry surprises.
Getting these controls in place helps manage high risk, as without them, the same patterns can repeat, giving the Home Office more reason to examine whether the problem extends beyond an isolated check.
| Common error | How to avoid or fix |
|---|---|
| Completing the check after the worker has started employment | Build the check into pre-employment onboarding and block start dates, IT access and payroll set up until evidence of a compliant check is on file. |
| Using the wrong checking method | Create a simple decision flow for staff based on nationality and how status is held, train to it and require escalation if documents do not match the expected method. |
| Saving incomplete or unclear evidence | Standardise evidence templates, require the prescribed online record or complete document copies with the required check date and store all evidence in one structured digital location. |
| Weak identity verification | Make the required identity comparison a mandatory step for every check and require escalation where the photo and individual do not obviously match. |
| Missing follow up checks on time limited permission | Use a central expiry tracking system with automated alerts and assign follow up responsibility to a named role, taking account of the separate rules for outstanding in-time applications, appeals and administrative reviews. |
| Assuming an agency or contractor arrangement removes Right to Work risk | Establish who employs the individual, define Right to Work responsibilities contractually and consider any separate sponsor record keeping duties that apply. |
| Allowing remote hiring shortcuts | Set a remote check protocol that follows the requirements of the applicable prescribed checking method and prohibits reliance on informal screenshots or scans as a substitute. |
| No clear ownership of Right to Work compliance | Define and document who is responsible for checks, evidence storage and follow ups, and verify through internal spot checks that the process is being followed. |
DavidsonMorris Strategic Insight
Remember, a weak individual check can lead to scrutiny of the wider system. The Home Office may look beyond an isolated error to assess whether similar weaknesses appear elsewhere and whether the employer can demonstrate clear evidence and robust processes.
Summary
Right to Work compliance demands more than completing checks at the point of hire. Employers are expected to maintain a structured, consistent system that works every time, across every site and for every worker. The Home Office now relies heavily on digital systems, data matching and evidence reviews, which means weaknesses in method selection, timing, identity verification or record keeping may become visible quickly. The statutory excuse against liability for a civil penalty only protects employers where the prescribed check is completed at the correct time and the required evidence is retained. If the employer cannot establish the statutory excuse and the individual is subsequently found to be working illegally, the organisation may be exposed to a civil penalty and, for sponsors, wider scrutiny of the licence.
The move to digital status has intensified these pressures. Online checks are now the default for most migrants. Physical BRPs no longer prove right to work. Identity Document Validation Technology has added another route for eligible British and Irish citizens, while manual checks apply to a smaller set of documents than before. Employers need trained staff, reliable internal systems and stable oversight to avoid inconsistent decisions that undermine compliance.
Follow up checks, expiry tracking and secure evidence retention remain high risk areas. Missed dates, poor storage practices or informal document handling can result in the employer losing a time limited statutory excuse. Different provisions apply where an existing employee has made an in-time application, appeal or administrative review and their continuing right to work is being verified.
A compliant environment requires clear responsibilities, documented processes, regular training and active monitoring. Employers who invest in these foundations are better equipped to withstand Home Office inspections and protect their organisation from financial, operational and reputational damage.
Need Assistance?
Right to Work compliance is a continuous legal obligation, not a quick administrative step. If you are unsure whether your current processes meet Home Office expectations, or if recent audits, staff changes or digital status reforms have exposed weaknesses in your system, early advice will help you control the risk before it escalates.
Our specialists support employers across every stage of compliance, from reviewing checking methods and evidence storage to strengthening internal governance, training programmes and audit readiness. We help organisations fix immediate issues and build systems that withstand inspection, including for sponsors facing licence risk.
If you need clarity, reassurance or strategic guidance on strengthening your Right to Work compliance, contact our team today.
FAQs
What is the statutory excuse and why does it matter?
The statutory excuse protects an employer against liability for a civil penalty if a worker is later found to be working illegally. It only exists where the employer has completed the prescribed Right to Work check at the correct time and retained the required evidence. It does not protect an employer from the separate criminal offence where the employer knew or had reasonable cause to believe that the person did not have the right to work.
Do I need to check British and Irish citizens?
The Home Office recommends that employers carry out Right to Work checks consistently for all prospective employees, including British and Irish citizens. Applying the same process to everyone reduces the risk of discriminatory treatment and helps employers avoid making assumptions based on nationality, appearance or other characteristics.
Are physical BRPs still acceptable for Right to Work checks?
Physical BRPs and BRCs are no longer acceptable evidence for the prescribed Right to Work check. Holders should normally generate a share code and be checked through the Home Office online service. Relying on the physical card does not establish a statutory excuse.
Can I rely on an agency to complete checks on my behalf?
It depends on who employs the worker. The statutory excuse is relevant to the employer under the illegal working scheme. Where a worker is supplied by an agency or contractor, you should establish who is the employing entity and ensure responsibilities are clear. Licensed sponsors may also have separate Appendix D record keeping duties where they sponsor a worker who is employed by another organisation.
Does a share code replace identity verification?
No. A share code gives the employer access to the worker’s online Right to Work profile, but the employer must still satisfy themselves that the person presenting themselves for work is the individual shown on the profile.
When should I use the Employer Checking Service?
The Employer Checking Service is used where the worker cannot establish their Right to Work through the prescribed online or manual routes and the circumstances fall within the Home Office criteria. This can include certain cases involving outstanding applications, appeals or administrative reviews. Where an eVisa holder can evidence continuing permission through the online service, the online check should be used instead.
What happens if a follow up check is missed?
If an employer does not complete a required follow up check, it may lose its time limited statutory excuse. This does not automatically mean the worker is working illegally. Different provisions apply where an existing employee has made an in-time application, appeal or administrative review, including circumstances where continuing permission can be verified online or through the Employer Checking Service and where a temporary 28-day extension of the existing statutory excuse may apply.
Can I complete an online check weeks before someone starts work?
Yes. The prescribed requirement is that the Right to Work check is completed before employment commences. There is no general rule requiring an otherwise compliant online check to be repeated simply because it was completed several weeks before the start date.
Do I still need evidence if the check was completed correctly?
Yes. The employer must retain the prescribed evidence of the check. If the required evidence cannot be produced, the employer may be unable to establish the statutory excuse if the worker is later found to have been working illegally.
Are remote checks acceptable?
Yes, where the applicable checking method allows the required steps to be completed remotely. For an online check, the employer can verify the individual against the digital profile by video call. For a manual check, the employer must still be in physical possession of the original document while verifying the worker, including where the identity comparison is completed over live video.
What is the biggest cause of civil penalties?
Civil penalty exposure commonly arises where an employer cannot establish a statutory excuse and the worker is found to be working illegally. Errors such as using the wrong checking method, missing required follow up checks, retaining incomplete evidence or failing to complete the required identity comparison can all prevent the employer from establishing that excuse.
Glossary
| Term | Definition |
|---|---|
| Right to Work check | The legally prescribed process an employer is required to follow to confirm a person is allowed to work in the UK and to create a defence against civil penalties. |
| Statutory excuse | The legal protection that shields an employer from liability for illegal working where they can prove a compliant Right to Work check was completed at the correct time and evidence was retained. |
| Digital status / eVisa | Immigration permission held electronically rather than on a physical document, which is proved through the Home Office online “view and prove” services using a share code. |
| Share code | The one time code generated by a worker with digital status that allows an employer to view their online Right to Work profile and confirm permission to work. |
| Online Right to Work check | The Home Office digital process where an employer uses a share code and date of birth to view a worker’s status, confirm identity via the photo and save the online profile as evidence. |
| Manual Right to Work check | A check completed by inspecting original documents from the Home Office’s List A or List B, verifying identity and keeping dated copies as evidence. |
| Identity Verification Technology | A digital method for verifying the identity of British and Irish citizens with valid passports or passport cards, using a certified Identity Service Provider, followed by an employer identity match. |
| List A and List B | The Home Office lists of acceptable documents for manual checks. List A documents give a continuous defence, List B documents only give a time limited defence and require follow up checks. |
| Employer Checking Service | The Home Office service that confirms whether a person has a right to work where they cannot provide acceptable documents or a share code, typically during pending applications or appeals. |
| Positive Verification Notice | The confirmation issued by the Employer Checking Service that a person has a right to work at that time, which gives the employer a temporary statutory excuse for a defined period. |
| Follow up check | The repeat Right to Work check required before a worker’s time limited permission expires, needed to preserve the statutory excuse beyond the original visa end date. |
| Civil penalty | The financial sanction imposed on an employer for employing someone without permission to work where no statutory excuse can be shown. Penalties are applied per illegal worker. |
| Sponsor licence | Permission granted by the Home Office that allows an organisation to sponsor overseas workers. Illegal working findings can lead to suspension, downgrade or revocation of the licence. |
| Appendix D | The part of the Immigration Rules that sets out record keeping and evidence retention requirements, including how long Right to Work records should be kept by sponsors. |
| Audit readiness | The employer’s ability to produce complete evidence quickly and to explain processes clearly during a Home Office inspection, showing that Right to Work controls work in practice. |
Additional Resources & Links
| Resource | URL |
|---|---|
| Home Office Right to Work checks employer guidance | https://www.gov.uk/government/publications/right-to-work-checks-employers-guide |
| Online Right to Work checking service | https://www.gov.uk/view-right-to-work |
| Prove your right to work service (worker portal) | https://www.gov.uk/prove-right-to-work |
| Employer Checking Service | https://www.gov.uk/employee-immigration-employment-status |
| Civil penalty code of practice for employers | https://www.gov.uk/government/publications/civil-penalty-scheme-for-employers-code-of-practice |
| Appendix D: record keeping requirements | https://www.gov.uk/government/publications/immigration-rules-appendix-d |
| Digital identity and attributes trust framework | https://www.gov.uk/guidance/digital-identity-and-attributes-trust-framework |
| Guidance for sponsors: workers and temporary workers | https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators |
