As Andy Williams says, “It’s the most wonderful time of the year…”—and he’s not wrong. The shops are in full festive sparkle and there are plenty of bargains to be had in the sales. In parallel, this is also the busiest time of year for retailers both on the high street and online, with seasonal hires being at their highest for the holiday season. 

With increased volumes of new hires and agency staff, it is at this time of year that the robustness of right to work processes become pivotal to an employer’s HR operation.

In July 2016, the Immigration Act 2016 came into force introducing new criminal penalties for individuals working in breach of their visa conditions and increasing the penalties for employers. Previously, such penalties were enforced when UK Visas and Immigration (UKVI) could prove that the employer knowingly employed an illegal worker. Since the introduction of the 2016 Act, the scope has expanded to enforce such penalties when the UKVI can prove an employer had reasonable cause to believe the individual did not have the right to work. This remains a high burden of proof, and one we have seen little enforcement of since its introduction.

An employer’s failure to complete a satisfactory right to work check would not in itself subject them to a fine in the first instance. When it comes down to it, illegal working is a question of liability once proven. A civil penalty fine will only be received if an employer is found to be employing an illegal worker without satisfactory right to work checks being on record.

In this blog, we look at the issues and penalties that can arise from right to work check violations when hiring direct hires, agency staff and international students.

Direct Hires

Where staff are employed directly, it is the employing entity that could be held liable to pay a civil penalty of up to £20,000 should illegal working be identified. 

In such circumstances, an employer can protect themselves if it can be proven that a valid right to work check was completed before employment commenced.

To establish a statutory defence an employer is required to carry out a compliant check of original documents that evidence that an individual has the right to work in the UK, such as a passport or biometric residence permit (BRP). They must be able to evidence that they have taken this check on or before an individual’s first day of work.

Agency Staff

Whilst responsibility sits with the agency to conduct right to work checks on any agency staff they supply, it would be prudent for a business to put terms and conditions in place in the service agreement. The agency should be willing to provide written guarantees that they will complete checks to UKVI standards prior to sending one of their workers to the business.

A business might also request to receive copies of the right to work check that has been completed (subject to GDPR considerations) or require the agency to conduct new right to work checks on an annual basis for any agency staff that they have on their books for a long period of time.


An often-overlooked employee population are Tier 4 General students. The level on which a Tier 4 General student is enrolled will dictate the number of hours they are permitted to work, if at all. It is therefore crucial that employers verify when an employee holding Tier 4 status is permitted to work and track the number of hours worked per week. For example, a Tier 4 General student working 21 hours a week during term time would be working illegally.

The right to work checks carried out on students also require a little more attention, with additional documentation required. Although some students who hold Tier 4 status are permitted to work full time during vacation periods, a full statutory defence is only created when evidence of term time is held on file, in addition to evidence of their UK immigration status (passport and visa or BRP card.) Employers who rely on seasonal staff are often well in the know of this practice when hiring international students, however, despite clear guidance being in the public domain it remains a common failure in the right to work check process.

Quantity Vs Quality 

When completing right to work audits, no matter how robust the system, we often find that when volumes increase, the quality of the right to work checks decreases.

To ensure quality does not waiver and the employer is able to establish a statutory defence, we recommend that:

  • refresher training is provided to those responsible for completing right to work checks; and/or
  • additional staff are allocated to help assist with excess volumes; and/or
  • right to work checks are staggered prior to the commencement of employment to spread the additional administrative burden placed on those responsible for completing the checks.


At such an expensive time of the year, taking time to ensure these simple steps are followed can make a huge difference to where a company’s hard-earned money and resources go. Once you’re happy that your employees and agency staff can join you in the build-up to the end of the year, you can focus efforts on festive fundamentals like mince pies, mulled wine and that dreaded Secret Santa gift.


For further queries, please contact Jenna Linney & Naomi Goldshtein.