In May 2024, UK Visas and Immigration released figures of the number of illegal working penalties that had been issued between October and December 2023. Over that period, only 685 people were found to be working illegally, but the total value of the related penalties was £7,875,000. 

There are also potential penalties that could be faced for employing someone illegally including criminal prosecutions and even the forced closure of the business.

The working visa rules also changed earlier this year and from 11 April 2024, applicants applying for UK visas have to be earning at least £38,700, up from the previous £26,200.

When the appropriate checks are carried out, then the statutory excuse is established, which means that even if new information later came to light and it transpired that the individual did not in fact have the right to work in the UK, themployers will not have the liability for having employed the individual illegally.

Checking right to work

It is essential to carry out right to work checks prior to when employment begins.

These checks involve a three-step process, beginning with obtaining the documents or other evidence of right to work, checking the documents are genuine and the person presenting them is their rightful owner and the prospective employee, and making a copy of the documents or Identity Document Verification Technology (IDVT) check and retain it on your records.

Checks can be carried out manually using original documents, online or digitally for British and Irish citizens.

Manual checks – in these checks, an original document is needed. These can be used for both foreign nationals, where they do not have a ‘share code’ (which must be checked using an online check) and British and Irish citizens.

Typically, this involves checking a passport (or passport card for Irish nationals), or birth certificate, however the full list of acceptable documents can be found on List A on gov.uk’s Employers' right to work checklist. These documents indicate the individual has an unlimited right to work and remain in the UK.

Online checks – using the Home Office online system, this is for foreign nationals who have an online share code.

Digital checks – these are used for British and Irish citizens. The services of an Identity Service Provider (IDSP) are used for this type of check, which uses Identity Document Verification Technology (IDVT) to check right to work documentation remotely. Once this check has been completed there will need to be a review of the outcome and file it.

Record keeping

An essential part of right to work checks and maintaining the statutory excuse is record keeping.

A record is needed of every document that has been checked, or if completing a digital check, the outcome of the IDSP’s IDVT check.

These should be kept securely for the duration of employment and for two years after, and accessible quickly should government officials need to check them. Being unable to produce them could mean the statutory excuse is lost.

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