Practical measures to reduce the risk of civil penalties, business disruption and sponsor licence consequences in an increasingly robust enforcement environment
Immigration Enforcement activity in the first half of 2026 increased significantly compared with the same period last year. There were 7,270 illegal working visits, representing a 31% increase, and 4,756 arrests, an increase of 20%. More than 1,200 employers received civil penalties during the same period, with potential penalties exceeding £74 million. The use of business closure notices and reviews of alcohol and late-night licences further demonstrates that illegal working is not merely a recruitment issue; it is a significant compliance risk that can affect a business’s finances, continuity of trading, licences and reputation.
Civil penalties and the statutory excuse
An employer may be liable for a civil penalty if it employs, or continues to employ, an individual who does not have the right to work in the UK, or whose employment breaches a condition attached to their immigration permission. Under the current regime, a first breach may result in a penalty of up to £45,000 per illegal worker, while a repeat breach may lead to a penalty of up to £60,000 per illegal worker. A failure to carry out, record or repeat a check correctly in respect of even one worker can therefore create substantial financial exposure.
To avoid liability, an employer must establish a statutory excuse by carrying out a prescribed right to work check correctly. It is not enough to say that the employer did not know about the individual’s immigration status, or that it made a good faith attempt to check it. Evidence must be able to demonstrate that the correct check was completed before employment commenced, that the required evidence was retained, and that any required follow-up check was carried out in time where the individual has time-limited permission.
Checks must be completed before work starts
A right to work check must be completed before the individual’s employment start date or their first day of work. This principle applies to permanent and part-time employees. It may also apply to temporary workers, unpaid trial participants, interns, work-experience participants and contractors who, in substance, are providing services for the business. The absence of a signed employment contract, or the fact that an individual is said to be undergoing training only, will not necessarily remove the risk.
The Human Resources team (HR Team) should treat completion of a right to work check as a mandatory recruitment gateway. In practice, an individual should not be added to a rota, payroll system or internal system, issued with equipment or an access pass, or allocated to work at a site until the relevant check has been completed and recorded. This is particularly important in hospitality, retail, warehousing, delivery and construction businesses, where urgent staffing requirements can lead to informal decisions by site managers to allow someone to start work before the appropriate checks are complete.
Correct checks and record keeping
Right to work checks must be carried out using a method appropriate to the individual’s nationality and immigration status. British and Irish citizens may be checked manually using acceptable original documents or, in certain circumstances, through a certified Identity Service Provider (IDSP). Individuals who hold an eVisa or another digital immigration status must generally provide a share code so that the employer can check their status through the Home Office online right to work service. Retaining only a copy of a passport, a visa image, an immigration email or a screenshot is unlikely to be sufficient to establish a statutory excuse.
Where an online check is completed, the employer must also satisfy itself that the photograph displayed in the result matches the individual who will be carrying out the work. This is an essential safeguard against impersonation using another person’s genuine share code. Where an in-person meeting is not practicable, a live video call may be used to compare the individual with the photograph and identity information shown in the result. The date, method and person carrying out the check should be clearly recorded.
Certain applicants, including some individuals with outstanding applications or appeals, may not be able to use the online right to work service. In those circumstances, an employer may need to use the Employer Checking Service. Making a request alone is not sufficient: the employer must obtain a Positive Verification Notice from the Home Office. HR should ensure that any restrictions stated in the notice, including limits on the type of work, working hours or the identity of the employer permitted, are compatible with the proposed role and working arrangements.
A business holding a sponsor licence must do more than retain right to work records. It must also ensure that the sponsored worker is genuinely carrying out the role described on their Certificate of Sponsorship (CoS). Differences between the actual duties, Standard Occupational Classification (SOC) code, salary, hours, work location, reporting line or working arrangements and the information recorded on the CoS may give rise to sponsor compliance concerns, even where there is no allegation of illegal working.
For workers with time-limited immigration permission, employers should maintain a central system for monitoring visa expiry dates, follow-up right to work checks, CoS expiry dates and any changes to immigration status. HR should contact the individual well in advance of an expiry date, rather than waiting until the final days of their permission. This gives the business time to consider whether an Employer Checking Service check, an extension application or further immigration advice may be required. Even where the initial check was correctly completed, failing to undertake a required follow-up check can mean that the statutory excuse is lost.
Where a sponsored worker is based at a client’s premises, a franchise location, a warehouse or another third-party site, the sponsor should understand who directs and supervises the individual’s day-to-day work. It should also consider whether the arrangement is a genuine provision of services or risks appearing to be labour supply, and whether a change in work location, duties or hours must be reported to the Home Office.
Outsourcing, franchises and platform work
Describing a person as self-employed, a freelancer, a delivery partner or an independent contractor does not, by itself, remove right to work or civil penalty risk. If the business sets the worker’s hours and location, requires them to perform the work personally, and exercises substantial control over how work is delivered or how the individual deals with customers, there may be an employment or worker relationship in substance. The Home Office is increasingly focused on the reality of the working relationship and the degree of control, rather than contractual labels alone.
A business cannot necessarily transfer all risk to a franchisee, labour provider, subcontractor or online platform. Liability may arise where the business knows, or has reasonable cause to believe, that an individual does not have the right to work but nevertheless allows them to carry out work. Businesses should also be mindful of the prospect of greater responsibility for businesses higher than the contractual chain and for online intermediary platforms under the developing framework.
Contracts relating to labour supply, outsourcing, franchising and platform arrangements should therefore expressly address right to work checks and record-keeping obligations. They should require prompt notification of any change to an individual’s immigration status or work conditions and require checks and approval before substitute personnel are deployed. It is also prudent to include audit rights, a right to require immediate replacement or remedial action where a breach is identified, termination rights for serious non-compliance, and suitable indemnity provisions.
HR audit and response arrangements
HR should operate a company-wide Right to Work Policy that clearly identifies who is covered, when checks must be carried out, which checking methods are permitted, how evidence must be retained, when follow-up checks are required, and how concerns should be escalated and approved. Recruitment staff and site managers should follow one consistent process to ensure that share code checks, photograph matching, work-condition checks and evidence retention are all properly documented.
HR should also maintain a central tracker or system for visa expiry dates and follow-up check dates. The record should include each worker’s immigration status, visa expiry date, CoS expiry date where applicable, follow-up check date, responsible person, date of contact with the worker, outcome of the check and the location of supporting evidence. For sponsored workers, the business should also carry out periodic checks that the role, pay, hours and work location remain consistent with the CoS.
Businesses should additionally have a documented procedure for responding to an Immigration Enforcement visit or the receipt of a Civil Penalty Notice. A site manager should verify the identity of visiting officers, preserve relevant documents and records without alteration, and notify HR and senior management immediately. Records of the visit and any documents provided may be material to a subsequent fact-finding exercise or civil penalty response. Advance training and careful document management are therefore preferable to an improvised response once enforcement action has begun.
Continuing review and specialist support
An effective prevention framework is not achieved through a single check at the point of recruitment. Employers should ensure that checks are completed before every new starter begins work, that follow-up checks for individuals with time-limited permission are carried out before the relevant deadline, and that personnel files are reviewed on a regular basis. Businesses in hospitality, retail, logistics, delivery and construction, where temporary, shift-based or outsourced labour is common, may reasonably adopt more frequent sample audits.
Recruitment staff, HR personnel, sponsor compliance officers, store managers, site supervisors and procurement teams should receive training appropriate to their responsibilities. Common risks include completing checks after work has started, relying on the wrong type of identity evidence, failing to match an individual to the photograph shown in a share code result, missing visa expiry or follow-up check dates, and treating outsourced workers as outside the business’s compliance responsibilities. Applying a consistent process to all applicants, rather than selecting individuals for checking based on nationality or appearance, is also important in reducing discrimination risk.
If you require specialist advice or support in relation to right to work checks and employment-related immigration compliance, please contact us on 020 3865 6219 or leave us a message. We can review your right to work procedures, record-keeping arrangements, outsourced labour structures and approach to illegal working risk, considering your workforce and sponsor compliance position.