In the UK, employing staff now requires employers to treat civil penalties for illegal working and right to work checks as core compliance issues. With higher maximum fines and tighter scrutiny, it is essential to understand the overall framework and embed strong internal processes. 

What Are Civil Penalties for Illegal Working in the UK?

Under the UK immigration framework, employers have a legal duty to verify that their workers have the right to work, and can face civil penalties if they fail to do so. If a person without valid permission to work is employed and the employer has not carried out compliant right-to-work checks, the employer can be fined a substantial amount per worker. Where there is repeat non‑compliance or clear evidence of systemic failures, penalties can approach the upper limits and may be accompanied by sponsor licence suspension or revocation, wider investigations and reputational damage. In serious cases where an employer knew, or had reasonable cause to believe, that the worker did not have the right to work, criminal liability can also arise.

What Is the Statutory Excuse and Why Does It Matter?

The statutory excuse is a legal defence that can protect an employer from a civil penalty, even if a worker later turns out to be working illegally. In essence, it allows an employer to say: “We accept that the person worked for us, but we followed the prescribed right to work check procedures at the time, so we should not be liable for a civil penalty.” To benefit from this defence, the employer must complete the required checks before employment starts, and where permission is time‑limited, must repeat checks before that permission expires. It is not enough simply to say that checks were done; the employer must be able to evidence which documents or statuses were checked, how and when, in order to rely on the statutory excuse.

How Can Civil Penalties Be Increased?

There are two main ways civil penalties can effectively increase. First, the government can raise the overall tariff or maximum levels through policy and legislative changes, reflecting a tougher stance on illegal working. Secondly, within an individual case, the actual penalty can be set higher by applying aggravating factors. For example, a previous civil penalty for illegal working, lack of cooperation with the Home Office, absence of documented procedures, or a larger number of illegal workers can all push the penalty towards the upper bands. Conversely, prompt cooperation, internal controls, training and remediation may support a reduction in the amount, even where liability is not fully avoided.

How Should Right-to-Work Checks Be Carried Out Before Employment?

Right to work checks must be completed before the individual starts work and are usually conducted via a manual check, an online check or an IDSP‑assisted digital check. In a manual check, the employer must first obtain original documents from the prescribed lists (such as List A or List B) from the applicant. The employer then checks, in person or over a permitted live video link, that the photograph, date of birth, name and any conditions are consistent and that the document appears genuine and unaltered. Finally, the employer must take a clear copy or scan of the relevant pages, record the date on which the check was carried out, and store the record securely for the duration of the employment and for a specified period afterwards. These records are vital evidence if a civil penalty notice is later issued.

Which Type of Right to Work Check Should be Used for Each Worker?

The same method does not apply to every worker; the appropriate check depends on nationality, immigration status and document type. British or Irish citizens with a valid passport or Irish passport card can usually be checked either through a traditional manual document check or via an approved Identity Service Provider (IDSP) using digital identity verification. Those who hold digital immigration status (such as eVisas, certain visas, or permits recorded online) are typically checked using the Home Office online right to work service and a share code provided by the worker. For others who only have physical documents or are awaiting decisions on applications, a manual check, combined, where appropriate, with the Employer Checking Service, may be required. The key is to use the prescribed route that matches the applicant’s status, rather than choosing an easier or more familiar method.

How Can Identity Fraud in Right-to-Work Checks Be Prevented?

One of the practical risks in right-to-work checks is that genuine documents or digital records may be used by someone other than the rightful holder. To reduce this risk, employers should ensure that those conducting checks receive basic training on spotting forged or altered documents. They should look for inconsistencies in fonts, spelling mistakes, unusual printing or lamination, and any mismatch between the photograph and the individual presenting the document. Even when using online checks or IDSP outputs, employers should include at least one step where the individual’s face is compared directly with the image associated with their status, either in person or via live video. If any doubt arises, it is safer to pause the recruitment process and seek further verification rather than rushing to hire.

Which Employer Mistakes Most Commonly Trigger Civil Penalties?

In practice, many penalties stem not from deliberate wrongdoing but from procedural lapses. A common issue is allowing individuals to start work, attend training or complete “trial shifts” before any right to work check has been completed. Employers also frequently accept documents that are not on the official list, fail to read or track expiry dates, or continue employment after permission has clearly ended. Another frequent problem is poor record‑keeping: blurred or incomplete copies, missing pages, or a lack of any recorded check date can all undermine the ability to rely on the statutory excuse. Over‑reliance on agencies or third‑party recruiters, without retaining the employer’s own evidence of checks, is another recurring source of difficulties.

How Should Internal Right-to-Work Audits Be Conducted?

Regular internal audits are one of the most effective safeguards against civil penalties and also demonstrate a proactive compliance culture. Employers should set a sensible audit cycle and scope, for example, an annual review of all staff or a risk‑based sample across sites or business units. For each personnel file reviewed, the auditor should confirm that a check was completed before employment started, that the method used was appropriate for the worker’s status, and that copies are clear, complete and properly dated. Where permission is time‑limited, auditors should check that expiry dates are recorded in the HR system and that follow‑up checks have been scheduled or completed. Any recurring issues should be addressed through updated procedures, additional training and improvements to systems such as automated reminders, with findings and remedial actions recorded for future reference.

How Should Employers Respond to a Civil Penalty Notice?

If a civil penalty notice is received from the Home Office, employers must act within the deadline set out in the notice. The first step is to review the factual basis of the notice, including whether the individual was genuinely employed by the business and under what arrangements. Employers should then gather all available evidence of right to work checks, internal policies, training records and audit reports relating to the worker and the wider system. This material forms the foundation for deciding whether to challenge the notice on the basis that the employer is not liable, has a statutory excuse, or should receive a lower penalty due to mitigating factors. Where the sums are significant, or the case is complex, it is often prudent to seek specialist legal or immigration advice to manage objections, appeals and any negotiations regarding reductions or payment terms.

What Should Employers Put in Place for Everyday Compliance?

The most effective approach is to embed right-to-work checks into everyday recruitment and HR processes so that compliance happens as a matter of course. Employers should implement a clear written policy and standardised checklists, so that every new joiner is subject to a right to work check as part of onboarding. Training should be provided not only to HR but also to hiring managers and supervisors, with regular updates when official guidance changes. All right-to-work evidence should be stored in a central, secure system linked to each employee’s record, with automated reminders for upcoming expiry dates of time‑limited permission. Importantly, checks should be applied consistently to all new employees, rather than targeted at particular nationalities or ethnic backgrounds, in order to minimise the risk of discrimination claims.

In the UK, right-to-work checks are not a box-ticking exercise but a crucial safeguard against substantial civil penalties and potential criminal liability. Choosing the appropriate type of check for each worker, completing it at the correct time, and maintaining clear records are central to securing the statutory excuse. Because the regulatory landscape develops over time and minor oversights can lead to significant financial and reputational consequences, employers should strengthen internal processes, invest in regular audits and ensure staff are properly trained.

For expert advice and assistance in relation to right to work checks and the right to work, contact us on 020 3865 6219 or leave a message.