Freeths closes the gap in compliance with right to work checks

Leading law firm Freeths is the only law firm at the forefront of identifying procedural gaps in compliance with UK right to work (RTW) checks. 

The Home Office has announced a nationwide blitz on illegal working, so it is more important than ever that businesses carry out right to work checks correctly. Freeths Immigration law team have launched a significant initiative to help employers maintain compliance with UK employment and immigration law, avoid fines and protect their reputation. 

Employers are required to carry out right to work checks on all employees. When done correctly, RTW checks establish a statutory excuse against liability for a civil penalty if it’s later discovered that an employee has lost their right to work. Establishing a statutory excuse is the main reason most employers carry out right to work checks, yet many businesses aren’t as well protected as they think.  
 
Since April 2022, employers have been allowed to use commercial third parties known as digital verification services (DVS) to run checks on British and Irish nationals. However, using a DVS – or Identity Service Provider (IDSP) as they were previously known – to check the right to work of foreign nationals does not establish a statutory excuse. This leaves the employer in the firing line if one of their foreign workers is discovered to be working illegally. Not all DVS providers make it clear that no statutory excuse is being established when they carry out right to work checks on foreign nationals.

Without the all-important statutory excuse, employers using third parties for right to work checks for all employees including foreign workers are leaving themselves vulnerable. If illegal working is discovered in a business, the Home Office can issue a penalty of up to £60,000 per illegal worker. They will publish the illegal working finding, which risks damaging a business’s reputation. A business may also lose its sponsor licence and have all visas held by sponsored workers cancelled. 

Emma Brooksbank, Immigration Partner at top 50 firm Freeths, said: “We have seen employers – including some large, household names – using DVS services for all employees, including foreign workers. When we query this, they’re always surprised to learn that they’re not establishing the all-important statutory excuse for their foreign workers. We’ve also been in correspondence with one of the DVS providers who seriously obfuscate the issue. They state that using DVS is allowed but overlook the fact that no statutory excuse is being established.”

From July 2024 to March 2025, the Home Office issued 1,508 civil penalty notices for illegal working and the number is likely to rise. Businesses can find themselves with devastating fines for having failed to follow the correct procedure. The Immigration law team is proactive in advising clients on RTW checks, supporting them in preventing illegal working practices in the UK, mitigating the risk of fines and protecting their business’s reputation.