UK Right to Work Checks in 2026: Employer Obligations, Civil Penalties, and How to Stay Compliant

Why Right to Work Checks Matter More Than Ever in 2026

Right to work checks have never been more important to employers. The UK has steadily increased enforcement action against businesses that fail to conduct proper checks or knowingly employ workers without lawful status. This matters because the financial and criminal consequences are severe.

In the third quarter of 2025, the Home Office issued 617 civil penalties to employers, recovering £34.26 million. These are not administrative notices or slaps on the wrist. Each penalty can reach £45,000 for a first breach and £60,000 for repeat breaches. For a small or medium-sized enterprise, a single penalty can damage cash flow significantly. For larger organisations, penalties often signal reputational damage and trigger follow-up audits.

The criminal route is equally serious. Knowingly employing someone without the right to work can result in up to five years imprisonment and unlimited fines. The Home Office has prosecuted employers, and these cases get media attention. Reputational harm compounds the legal exposure.

Additionally, 2026 marks a critical transition point. By 31 December 2026, British Residence Permits (BRPs) and visa vignettes will no longer be valid as evidence of right to work. Employers must shift to checking eVisas through the Home Office's online portal. This changeover creates practical challenges and operational risks if not managed properly.

The Legal Basis: Civil and Criminal Penalties

The primary duty to conduct right to work checks comes from the Immigration, Asylum and Nationality Act 2006, section 15. This section creates a civil penalty regime. If an employer employs someone who is unlawfully in the United Kingdom, the employer is liable to a penalty. The employer's state of mind does not matter for civil penalties. Even if the employer genuinely believed the worker had the right to work, the penalty can still apply unless the employer can show it had a statutory excuse.

The Immigration Act 2014 took things further. Section 21 creates a criminal offence of employing someone you know, or have reasonable cause to believe, is an illegal worker. This introduces a mens rea requirement: intentionality or recklessness. However, the bar for "reasonable cause to believe" is lower than knowledge. If you ignore obvious indicators that a worker lacks status, or fail to conduct checks at all, you may have reasonable cause to believe the person is an illegal worker.

The civil regime operates independently of the criminal regime. An employer can face both simultaneously. The Home Office calculates civil penalties using statutory guidance. The starting point is the daily rate of salary for each illegal worker, multiplied by the number of days worked. The civil penalty can be up to £45,000 for the first breach. If you have had another penalty in the past five years, the penalty can reach £60,000.

The statutory excuse is your main defence to a civil penalty. You have a statutory excuse if: you carried out a right to work check before employment began; you retained a copy of the check and the document(s) on which it was based; the document appeared to be genuine; and the document appeared to relate to the person you checked. These are strict requirements. A half-hearted check will not suffice.

Three Methods for Conducting Right to Work Checks

The Home Office accepts three distinct methods for conducting a right to work check. Each has different procedural requirements.

The first method is the manual document check. You examine the original documents in person and verify they are genuine. For this method, you can check a wide range of documents: UK passports, passports from other countries with a recent date of entry stamp showing three months' residence, visas, immigration statuses marked on passports, Residence Permits issued by the Home Office, or Birth Certificates if the worker is a British citizen by descent. You copy both the document you checked and any relevant pages showing the person's visa status. You must retain these copies for at least two years after employment ends.

The second method is the online check via the gov.uk share code system. Your employee generates a share code through their UK Visas and Immigration account and provides it to you. You enter the code on the gov.uk right to work check page, and the system tells you whether the person has the right to work. This method works for anyone with an eVisa and for some people with limited leave to remain. The advantage is that you do not need to handle physical documents. You still must keep a record of the check, but you are checking live data from the Home Office system.

The third method applies to British and Irish citizens. The Identity Document Validation Technology (IDVT) system allows you to verify a British passport or UK photocard driving licence electronically. You do not need to examine the original document. The system checks the document details against the Home Office records and confirms the person is a British or Irish citizen. This is the quickest method for eligible workers.

Step-by-Step Process: Obtain, Check, Copy, Record

The process must follow a strict sequence to establish a statutory excuse.

First, before the person starts work, obtain the original documents or the share code. Do not proceed with employment if you cannot complete the check. The timing matters because if you employ someone first and check later, you may not have a statutory excuse.

Second, conduct the check itself. For manual checks, examine the documents in person to ensure they are genuine and relate to the person standing in front of you. For online checks, enter the share code and verify the positive response. For IDVT checks, enter the document details and confirm the match.

Third, copy the documents. If you use the manual method, take a photocopy of the document(s) you relied on. Keep a copy of any pages showing visa status, expiry dates, or conditions of stay. Do not accept screenshots or emailed copies as a substitute for examining the original.

Fourth, create a written record of the check. Document the date of the check, the documents examined or the share code used, and the outcome. If you use an IDVT check, the system provides a confirmation reference. If you use a share code, note the reference number provided by the online system. This record must be kept for at least two years after the person leaves your employment.

If an employee has time-limited permission to work, you must carry out a follow-up check before their permission expires. If they continue working after expiry without a renewed check, you risk another breach. Set a reminder system to flag when renewal checks are needed.

How the Home Office Calculates Civil Penalties

The Home Office uses a structured formula to calculate penalties. The baseline is the daily rate of pay for the illegal worker, multiplied by the number of days worked. If the person earned £20,000 per year, that is roughly £55 per day. If they worked 365 days illegally, the baseline is £20,075.

The Home Office then applies aggravating and mitigating factors. Aggravating factors include: employing multiple illegal workers; employing workers from overseas via agency; employing workers you knew or suspected lacked status; failing to keep records; operating in sectors with high prevalence of illegal working (such as hospitality or construction). Mitigating factors include: prompt co-operation with investigators; early payment of any penalty; acting on the basis of a genuine error despite reasonable precautions; and taking steps to prevent future breaches.

The Civil Penalty Determination Letter from the Home Office sets out the calculation. You have the right to appeal or request a review, but the burden is on you to show the Home Office made an error in law or fact.

Criminal Liability: When Negligence Becomes Crime

The criminal offence under section 21 of the Immigration Act 2014 requires proof that you knew, or had reasonable cause to believe, the person was working illegally. This is a higher bar than civil liability, but it remains low.

The Crown Prosecution Service has prosecuted employers for employing workers with false documents, employing workers who overstayed, employing workers without conducting any check at all, and employing workers from countries subject to visa requirements without verifying their status. Convictions have led to jail sentences and substantial fines.

A defence of negligence does not help. If you ignored red flags, such as an applicant unable to provide original documents, or a share code that failed validation, you may have reasonable cause to believe the person lacked status. The Crown must prove the offence beyond a reasonable doubt, but the threshold of "reasonable cause to believe" is lower than knowledge.

The eVisa Transition: BRPs and Vignettes End 31 December 2026

This is the practical change that catches many employers unprepared. From 1 January 2027, British Residence Permits (the biometric cards issued to non-European workers) and visa vignettes (the stamps in passports) will no longer be acceptable as evidence of right to work.

Workers must instead access their eVisa through the gov.uk account. They generate a share code and provide it to the employer. The employer checks it online. For employers, this means you must shift away from collecting and copying physical documents for most non-British workers and instead use the online share code system.

This transition creates operational risk. If you have workers whose BRPs expire before 31 December 2026, you need to plan follow-up checks now to ensure they have an eVisa in place before their current document expires. If a worker's BRP becomes invalid on 31 December 2026 and you have not switched to checking an eVisa, you will have a breach.

Practical Compliance Strategy for 2026

To stay compliant, adopt the following discipline.

Check before employment begins. Do not start a worker's first day without completing the right to work check. Document the date and method clearly. If someone cannot produce documents or a working share code, do not proceed.

Maintain accurate records. Store copies of documents or share code references in a secure location. Include the date of the check, the method used, and any notes about the document examined. Two years is a long time to retain records, but immigration audits can go back further, so keeping records for three years is prudent.

Plan for time-limited permission. When you onboard a worker with a visa that expires, set a calendar reminder three months before expiry to arrange a follow-up check. Do not wait until the last day.

Audit your current workforce now for the eVisa transition. If you have workers on BRPs or vignettes, confirm they have eVisas in place or understand when they need to apply. Plan the transition before 31 December 2026.

Use the right method for the right worker. For British and Irish citizens, use IDVT checks if possible; it is faster and more secure. For others, offer the share code method as your first option; it minimises document handling risk. Use manual checks only when necessary.

Consider written policies. Document your right to work checking procedures in an employee handbook. Make it clear to all staff that you require evidence of right to work before employment begins.

The Equality Act Trap: Non-Discrimination in Checks

The Equality Act 2010 prohibits discrimination based on protected characteristics, including race, nationality, and ethnic origin. This has direct implications for right to work checks.

You must apply right to work checks to all employees equally. If you check the documents of non-British workers but not British workers, that may constitute discrimination based on race or national origin. The Home Office is aware of this risk and has issued guidance that you should check all employees, regardless of appearance or accent.

In practice, this means: check everyone before they start; apply the same process uniformly; do not single out workers from particular countries or with particular accents; and do not assume someone has the right to work based on their appearance or the location where they applied.

If a discrimination claim is brought, you will face separate exposure under employment law, in addition to any immigration penalty. The Equality and Human Rights Commission has investigated employers for selective checking, and cases have resulted in significant awards.

Key Changes in April 2026

Two important developments arrive in April 2026. The National Living Wage increases to £12.71 per hour from 1 April 2026. While not directly a right to work matter, this affects cost calculations in penalty assessments and wage-based baselines.

More significantly, the Fair Work Agency becomes operational on 7 April 2026. This new body will enforce employment rights, including checking for illegal working. The Fair Work Agency will have powers to inspect employers, gather evidence, and refer cases for criminal prosecution. This represents a new enforcement avenue alongside the Home Office's existing powers. Expect increased scrutiny of workplace practices in the first year of the Fair Work Agency's operation.

Summary: Action Points for Employers

Right to work compliance is not discretionary. The penalties are real, the enforcement is active, and the reputational damage is significant.

Check all employees before they start work using one of the three accepted methods. Keep written records of every check, including the date, method, and documents examined or share code used. Retain these records for at least two years after employment ends. Plan for follow-up checks well before time-limited visas expire. Prepare for the eVisa transition by 31 December 2026. Apply checks uniformly to all employees to avoid discrimination claims. And ensure senior management understands that right to work checking is a legal obligation, not a human resources convenience.

If you are unsure whether your current processes meet the standard, seek advice. An audit of your checking procedures now could prevent a £45,000 or £60,000 penalty later.

Sources and Further Reading

• GOV.UK Right to Work Checks Employers Guide: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
• GOV.UK Prevention of Illegal Working: https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers
• Davidson Morris Right to Work Guidance: https://www.davidsonmorris.com/right-to-work/
• Addleshaw Goddard April 2026 Employment Law Changes: https://www.addleshawgoddard.com/en/insights/insights-briefings/2026/employment/uk-employment-law-changes-april-2026-six-things-hr-should-know/
• Immigration, Asylum and Nationality Act 2006, Section 15: Civil penalty for employing illegal worker
• Immigration Act 2014, Section 21: Criminal offence of employing illegal worker
• Equality Act 2010: Protection against discrimination in employment and right to work checking