Imagine two employers. Both employed a person who, it later emerged, did not have the right to work in the UK. Both received a visit from Immigration Enforcement. Both were issued a referral notice.
Employer A had conducted a compliant right-to-work check before the employee started. They had verified original documents from the prescribed list, confirmed the documents related to the person presenting them, retained clear copies with a record of the date, and scheduled follow-up checks before the visa expiry. Their paperwork was in order.
Employer B had asked the candidate at interview whether they had the right to work. The candidate said yes. The employer moved on. No documents were checked. No copies were retained. No record was created.
The outcome: Employer A was found to have a statutory excuse and faced no penalty. Employer B was issued a civil penalty notice of £45,000. Same situation — employing someone without the right to work — but entirely different consequences, determined entirely by the quality of the check process.
The statutory excuse is the single most important concept in right-to-work compliance. It is the difference between a clean outcome and a penalty that can reach £60,000 per worker. Yet many employers — particularly small businesses without dedicated HR teams — have never heard the term, let alone understood how to establish one.
The legal foundation
The statutory excuse is established under Section 15 of the Immigration, Asylum and Nationality Act 2006. This section creates a civil penalty regime for employers who employ people who do not have the right to work in the UK. Crucially, it also provides a defence: if the employer conducted a prescribed right-to-work check before employment began, they are excused from the civil penalty — even if the worker turns out to have no right to work.
The logic is straightforward. The government recognises that employers are not immigration officers. They cannot be expected to detect every fraudulent document or identify every overstayer. What they can be expected to do is follow a prescribed verification process. If they do, they are protected. If they do not, they are liable.
The Home Office employer guidance sets out the prescribed process in detail. It is not optional. It is not guidance in the sense of "recommendations you should consider." It is the specific set of steps you must complete to establish your legal defence.
The three-step process
Establishing a statutory excuse requires completing all three steps of the Home Office prescribed check. Missing any step — or completing them incorrectly — invalidates the excuse.
Step 1: Obtain original documents
The employee must present original documents from one of two lists specified by the Home Office:
List A documents establish an ongoing, unlimited right to work. These include:
- A UK or Irish passport (current or expired)
- A certificate of registration or naturalisation as a British citizen
- A permanent residence card, indefinite leave to remain document, or settled status under the EU Settlement Scheme
A single document from List A is sufficient, and the statutory excuse it establishes lasts for the duration of employment. No follow-up check is required.
List B documents establish a time-limited right to work. These include:
- A current passport with a valid visa endorsement
- A Biometric Residence Permit (current and within validity)
- A positive verification via the Home Office online checking service (share code)
- An Application Registration Card with the right to work
List B documents establish a statutory excuse only until the expiry date of the right to work. A follow-up check must be conducted before that date to maintain the excuse.
The employer must see the original document. Photocopies, scanned images, screenshots, and printouts are not acceptable at this stage. For online checks using a share code, the employer must enter the code into the Home Office online service themselves — a printout of the result page presented by the employee does not satisfy the requirement.
Step 2: Check the document in the presence of the holder
The employer must verify that the document:
- Is genuine and has not been tampered with
- Belongs to the person presenting it (compare the photograph to the person)
- Allows the person to do the type of work being offered
- Is from the prescribed list of acceptable documents
This step requires the person to be present — either physically or, where permitted, via a video call. The employer must satisfy themselves that the person presenting the document is the person depicted in it. This is where document fraud detection becomes relevant: the employer has a duty to check for obvious signs of tampering, though they are not expected to be forensic document examiners.
For online checks, the employer compares the photograph displayed on the Home Office system to the person.
Step 3: Retain a clear copy and record the date
The employer must make and retain a copy of every document checked. For physical documents, this means a clear photocopy or scan of:
- The front cover and any page containing the holder's personal details, photograph, and any visa or endorsement
- For biometric documents, both sides of the card
For online checks, the employer must save or print the profile page displayed by the Home Office online service.
Every copy must be annotated with the date the check was conducted. The records must be stored securely and retained for the duration of employment and for two years after employment ends.
This retention requirement is absolute. If you conducted a perfect check five years ago but cannot produce the records today, you do not have a statutory excuse for the period in question.
When the excuse applies — and when it does not
Understanding the boundaries of the statutory excuse is critical. It is not a blanket protection. It applies in specific circumstances and can be lost.
Timing
The check must be completed before employment begins. A check conducted on the employee's second day, first week, or during onboarding after work has started does not establish a statutory excuse for the period between the start date and the check. This is one of the most common mistakes SMEs make — treating the check as an administrative task that can be completed "when there's time."
Follow-up checks for time-limited permissions
For employees with time-limited right to work (List B documents), the statutory excuse expires when the right to work expires. To maintain the excuse, a follow-up check must be completed before the expiry date. If the employee's visa expires on 15 September and you conduct the follow-up check on 20 September, you lost your statutory excuse on 16 September. Five days of exposure is five days of liability.
The Home Office recommends conducting follow-up checks shortly before the expiry date — not months in advance (which would not cover the period up to expiry) and not after the date has passed (which creates a gap).
Document adequacy
The statutory excuse only applies if the documents checked are from the prescribed list and are current at the time of the check. Accepting an expired passport from a non-British/Irish national, a document not on the prescribed list, or a BRP that has passed its expiry date does not establish a statutory excuse — even if the check was otherwise correctly conducted.
Equal treatment
The statutory excuse does not protect employers who apply checks discriminatorily. Under the Equality Act 2010, right-to-work checks must be applied equally to all employees regardless of nationality, ethnicity, or appearance. Checking only employees who "look foreign" or have non-British names is discriminatory and can result in separate legal liability. The correct approach is to check every employee using the same process.
What voids a statutory excuse
Even where a check was conducted, certain circumstances can void the statutory excuse:
- The employer knew the employee did not have the right to work — if there is evidence that the employer was aware of the immigration status issue, the statutory excuse does not apply, regardless of whether a check was conducted
- The employer had reasonable cause to believe the employee did not have the right to work — this is a lower threshold than actual knowledge; if circumstances should have raised suspicion and the employer ignored them, the excuse may be invalid
- The documents were obviously fraudulent — while employers are not expected to detect sophisticated forgeries, documents that are clearly fake (wrong format, obviously altered, incorrect security features) do not establish a statutory excuse
- The check was incomplete — missing any of the three steps (obtain, verify, copy and date) invalidates the excuse
The penalty regime
Understanding what you are defending against puts the importance of the statutory excuse in context.
Civil penalties for employing an illegal worker are currently set at:
- Up to £45,000 per illegal worker for a first breach
- Up to £60,000 per illegal worker for repeat breaches
These penalties are per worker, not per incident. An employer found to have three workers without the right to work at a single premises faces potential penalties of £135,000 to £180,000.
In the most serious cases — where the employer knowingly employed someone without the right to work — criminal prosecution can result in an unlimited fine and up to 5 years' imprisonment.
The statutory excuse is the shield against the civil penalty. Without it, the employer's only recourse is to challenge the penalty amount, not the liability itself.
Building an excuse that holds up
The common thread in all of this is documentation. The statutory excuse is not established by doing the right thing. It is established by doing the right thing and being able to prove it later. An audit trail — timestamped, complete, accessible — is the foundation.
Certifyd's Right to Work Portal automates the three-step check process, creating a statutory excuse that is documented from the moment the check is conducted. Every verification generates a timestamped, tamper-proof record showing what was checked, when, and by whom. Follow-up checks for time-limited permissions are tracked automatically with proactive alerts before expiry dates. The result is a compliance record that holds up to scrutiny — from the Fair Work Agency, the Home Office, or a tribunal.
For employers who want to ensure their statutory excuse is airtight, see how Certifyd works.