Right to work checks – do you have a statutory excuse?

Published on: 09/09/2016


All employers regardless of whether they hold a Sponsor Licence or not, are expected to carry out prescribed document checks on all employees before they start work. Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK.

But how long is the statutory excuse valid and when do you have to carry out follow up checks? Our business immigration lawyers are all too familiar with cases where employers have been caught off guard by immigration officers dropping in for unannounced visits and concluding right to work checks were not conducted correctly.

Continuous Statutory Excuse

Generally, if an employee produces a British passport, Permanent Residence Card or a Biometric Residence Permit (BRP) showing they have indefinite leave they would have demonstrated they have an indefinite right to work in the UK without restriction. If the employer keeps a proper copy of this evidence, they would have a statutory excuse which lasts for the duration of the employee’s employment.

Time-Limited Statutory Excuse: Positive Verification Checks

On the occasions where an employee produces a passport or BRP which shows they have a time limited right to work in the UK, the statutory excuse will only last until the expiry of the visa and the employer is expected to conduct follow up checks to ensure the employee has the correct visa allowing him/her to continue working for them.

In exceptional circumstances, an employer may be required to obtain a Positive Verification Notice from the Home Office. This would be required if an employee produces:

  • A Certificate of Application less than 6 months old which indicates that work is permitted; or
  • An Application Registration Card stating that the holder is permitted to undertake the work in question; or
  • No acceptable documents because they have an outstanding application with the Home Office or appeal/administrative review against the Home Office.

In the above circumstances, an employer will need to contact the Home Office’s Employer Checking Service (ECS) and obtain a Positive Verification Notice which will give them a statutory excuse for 6 months. If the employer receives a Negative Verification Notice, it means the employee is not permitted to work and by continuing to employ them, the employer is liable for civil and criminal penalties.

Liability for UKVI Civil Penalties

The ultimate responsibility for checking documents correctly is the employers – whilst this can be delegated to other staff members, the employer remains liable for civil penalties. It is therefore important that correct training is provided to HR teams so they are aware of how to identify false documents and carry out prescribed document checks correctly. Our business immigration lawyers regularly provide comprehensive training to HR teams and knowhow seminars to help them understand the importance of carrying out correct checks. If you would like further information, please contact our business immigration team on 020 7539 8000.


This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.