Carrying out a right to work check correctly is a legal responsibility for UK employers and an important part of preventing illegal working.
A compliant check can also give an employer a statutory excuse against liability for a civil penalty if an individual is later found to be working illegally. Employers who fail to carry out the prescribed checks correctly can face significant financial and operational consequences.
The Home Office currently states that an employer found to be employing someone illegally without having carried out the required checks may face a civil penalty of up to £60,000 per illegal worker, together with other potential sanctions.
Right to work requirements have also become increasingly digital, particularly following the transition from physical Biometric Residence Permits (BRPs) to eVisas.
Below are three of the most common right to work check mistakes employers make, together with practical steps businesses can take to reduce their compliance risk.
1. Accepting the Wrong Right to Work Documents
One of the most common mistakes is assuming that any immigration document presented by a worker is sufficient evidence of their right to work.
It is not.
The method of carrying out a right to work check depends on the individual’s circumstances and the evidence available. Employers may need to use:
a Home Office online right to work check;
a prescribed manual document check;
an approved digital verification process in appropriate cases; or
the Employer Checking Service (ECS) where the worker cannot otherwise demonstrate their right to work and the circumstances permit an ECS check.
A particularly important area for employers is the move from physical immigration documents to digital immigration status.
BRPs and eVisas
Biometric Residence Permits stopped being issued by the Home Office on 31 October 2024 as part of the transition towards eVisas. The Home Office guidance confirms that an expired physical BRP cannot be accepted through a manual right to work check.
Instead, where applicable, the worker should normally provide the information needed for the employer to carry out a Home Office online right to work check.
This is an important distinction. Simply photocopying an expired BRP does not establish a statutory excuse.
How employers can reduce the risk
Employers should:
ensure HR and recruitment teams understand the different right to work checking methods;
avoid relying on outdated internal document lists;
use the latest Home Office guidance when conducting checks;
make sure the person conducting the check understands any restrictions shown on the worker’s right to work; and
confirm that the individual presenting for work is the person to whom the right to work evidence relates.
Right to work procedures should be reviewed regularly rather than treated as a one-off HR policy.
2. Failing to Keep Proper Right to Work Records
Conducting the right to work check is only part of the compliance process.
Employers must also retain appropriate evidence that the check was completed correctly.
For manual document checks, employers should retain clear copies of the documents checked and record the date on which the check was carried out.
For online checks, employers should retain evidence of the Home Office right to work check in accordance with the applicable guidance.
The Home Office currently requires relevant right to work records to be kept securely for the duration of the individual’s employment and for a further two years after their employment ends.
These records can become particularly important if the Home Office carries out a compliance visit or investigates whether an employer has employed an illegal worker.
An employer may have conducted a check in practice, but if it cannot demonstrate that the prescribed process was followed, establishing a statutory excuse may become considerably more difficult.
Common record-keeping mistakes
Typical problems include:
failing to record the date of the check;
retaining incomplete copies of documents;
saving screenshots that do not contain all relevant information;
losing right to work records when HR systems change;
failing to retain evidence of subsequent checks; and
deleting records immediately after employment ends.
How employers can reduce the risk
Businesses should have a centralised and secure system for storing right to work evidence.
The system should clearly show:
the employee’s details;
the type of right to work check conducted;
the date of the check;
the evidence obtained;
whether the right to work is permanent or time-limited; and
where applicable, when a further check is required.
Regular internal audits can help identify missing or incomplete records before they become a Home Office compliance issue.
3. Missing Follow-Up Checks for Employees With Time-Limited Right to Work
Not every employee has an unlimited right to work in the UK.
Where a worker has time-limited permission, an employer may need to carry out a follow-up right to work check to maintain its statutory excuse.
The Home Office guidance states that where an employee has time-limited permission to work, the follow-up check should take place on or before the date their permission comes to an end.
This is where employers can encounter problems.
A compliant right to work check conducted when somebody joins the business does not necessarily protect the employer indefinitely.
For example, an employee may initially have the right to work until a particular date. If the business fails to carry out the required follow-up check and continues employing them after its statutory excuse expires, the employer could be exposed if that individual no longer has permission to work.
Do not automatically dismiss an employee whose permission appears to have expired
An expiry date does not necessarily mean that the individual has lost their right to work.
For example, an employee may have submitted an in-time immigration application and may continue to have permission to work while that application is outstanding.
In certain circumstances, the employer may need to use the Employer Checking Service to verify the person’s continuing right to work.
The Home Office guidance specifically advises employers to give workers a reasonable opportunity to demonstrate that they continue to have the right to work where their position is not immediately clear.
Employers should therefore avoid making assumptions based solely on an expired visa date or difficulties obtaining a share code.
How employers can reduce the risk
Businesses employing workers with time-limited immigration permission should maintain a reliable diary or HR alert system.
Ideally, reminders should be scheduled sufficiently early to allow HR to:
contact the employee;
request updated right to work evidence;
carry out the appropriate online or manual check;
use the Employer Checking Service if required; and
obtain immigration advice where the individual’s circumstances are unclear.
How to Avoid Right to Work Check Mistakes
Right to work compliance is easier to manage when it forms part of a structured HR process rather than being dealt with only when an employee joins or a visa is about to expire.
Employers should consider the following measures.
Train HR and Recruitment Teams
Anyone responsible for recruitment or onboarding should understand how right to work checks operate and when different checking methods must be used.
Training should be refreshed whenever Home Office guidance changes.
Carry Out Regular Right to Work Audits
Periodic internal audits can identify:
missing checks;
incomplete records;
incorrect checking methods;
upcoming visa or permission expiry dates; and
employees for whom follow-up action may be required.
This can be particularly important for businesses holding a sponsor licence, where weaknesses in right to work processes may also indicate broader sponsor compliance concerns.
Use a Reliable Monitoring System
Do not rely on individual members of staff remembering immigration expiry dates.
Use an HR system, compliance tracker or calendar reminder process to flag follow-up checks before they become due.
Apply Checks Consistently
Right to work processes should be applied consistently to new employees rather than making assumptions about someone’s immigration status based on factors such as their name, accent or nationality.
Employers should also ensure that their right to work procedures comply with applicable discrimination law.
Seek Immigration Compliance Advice Where Necessary
Some cases are straightforward. Others are not.
Difficulties can arise where, for example:
an employee has an outstanding immigration application;
a share code is not working;
immigration status has recently changed;
an employee cannot access their eVisa;
the Employer Checking Service is required; or
the employer is unsure whether an individual is permitted to carry out a particular role.
Obtaining advice before taking action can reduce the risk of both immigration compliance problems and employment law disputes.
What Happens If an Employer Gets a Right to Work Check Wrong?
Failing to follow the prescribed right to work checking process can have consequences beyond the civil penalty itself.
According to current Home Office guidance, sanctions for illegal working can include a civil penalty of up to £60,000 per illegal worker. In serious cases, employers may also face criminal sanctions, restrictions affecting their ability to sponsor migrant workers and other enforcement action.
For sponsor licence holders, poor right to work procedures may also raise wider questions about the organisation’s immigration compliance systems.
This makes preventative compliance significantly more effective than attempting to correct widespread right to work problems after a Home Office investigation has begun.
