A statutory excuse can protect an employer from a civil penalty if a worker is later found not to have the right to do the work in question. The protection depends on carrying out the prescribed right to work check correctly, on time and with a reliable audit trail.
For employers, HR teams and sponsor licence holders managing right to work compliance.
Reviewed by the Morgan Smith Immigration team — IAA-regulated UK immigration specialists. Last reviewed 2026-07-29.
TL;DR
A statutory excuse is an employer’s defence against liability for a civil penalty where the prescribed right to work check was completed correctly. There is no Home Office application fee: the protection may be continuous or time-limited, and evidence should normally be kept throughout employment and for 2 years afterwards.
£0
Home Office application fee
2 years
Evidence retention after employment
£60,000
Maximum repeat-breach penalty per worker
What is a Statutory Excuse?
A statutory excuse is a legal defence available to an employer against liability for a civil penalty for illegal working. It is established by carrying out one of the prescribed right to work checks before employment begins and keeping the required evidence.
The correct check depends on the person’s status and evidence. An employer may use the Home Office online right to work service, a compliant manual document check, an Identity Document Validation Technology check through an eligible identity service provider for qualifying British and Irish citizens, or the Employer Checking Service where the prescribed circumstances apply.
A List A check can provide a continuous statutory excuse for the duration of employment. A List B check normally creates a time-limited statutory excuse, so the employer must complete a follow-up check before that protection expires.
The statutory excuse is a defence to a civil penalty; it is not permission to employ someone where the employer knows, or has reasonable cause to believe, that the person is working illegally. Checks should also be applied consistently to avoid unlawful discrimination.
How Employers Establish a Statutory Excuse
The prescribed check must match the worker’s evidence and be completed at the correct time.
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Use a Prescribed Check
Use the check method permitted for the worker’s evidence: Home Office online service, manual document check, eligible IDVT check, or the Employer Checking Service. An informal document review or screenshot that does not meet the prescribed process may not establish the defence.
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Complete the Check on Time
The initial check must normally be completed before employment starts. Where the worker has time-limited permission, schedule and complete any required follow-up check before the existing statutory excuse expires.
£
Retain Clear Evidence
Keep a clear, secure and unalterable record of the check, including the date it was completed and the result. Evidence should normally be retained for the duration of employment and for 2 years after employment ends.
What You Can and Cannot Do
What a statutory excuse protects against — and what it does not
✓ You Can
- Obtain civil penalty protection where the prescribed check was completed correctly.
- Use the Home Office online service for workers who can provide a valid share code.
- Use a compliant manual check where an acceptable original document can be used.
- Use IDVT through an eligible provider for qualifying British and Irish passport holders.
- Use the Employer Checking Service where the worker has an eligible outstanding application or other specified evidence.
- Retain the protection by completing required follow-up checks on time.
✗ You Cannot
- Rely on an informal check that does not follow the prescribed Home Office process.
- Complete the initial check after employment begins and assume it retrospectively creates the same protection.
- Ignore work restrictions shown by the online result, document or Positive Verification Notice.
- Treat a time-limited excuse as permanent without carrying out a required follow-up check.
- Rely on the defence where you know or have reasonable cause to believe the person is working illegally.
- Discriminate between applicants by checking only people who appear or sound non-British.
Costs & Fees
Current fees as of 2026. Set by the Home Office — subject to change.
Fees set by the Home Office and subject to change. Last reviewed: July 2026.
| Item | Cost (2026) |
|---|---|
| Home Office statutory excuse | No application fee |
| Online right to work check | Free |
| Employer Checking Service | Free |
| IDVT provider service | Provider charges may apply |
| Compliance advice | Professional fee varies |
How to Establish and Retain a Statutory Excuse
A five-step right to work compliance process for employers and HR teams.
Identify the Correct Check
Confirm whether the worker should be checked through the Home Office online service, an eligible IDVT provider, a manual document check or the Employer Checking Service.
Complete the Check Before Work Starts
Follow the prescribed process, confirm the person presenting the evidence is the prospective worker and verify that the permission covers the proposed role.
Record the Date and Result
Save the online profile, Positive Verification Notice, IDVT output or clear document copy in a secure format that cannot be manually altered.
Diarise Follow-up Action
Where the worker has time-limited permission, record the expiry date and complete the next prescribed check before the statutory excuse ends.
Retain and Audit the Evidence
Keep the evidence throughout employment and for 2 years afterwards, and periodically test the organisation’s process for consistency and compliance.
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Sources
Legal information on this page is based on guidance from GOV.UK, the UK Home Office / UK Visas and Immigration, legislation.gov.uk, and Free Movement. Rules change frequently — speak to our team to confirm current requirements.
Frequently Asked Questions
Practical questions about statutory excuses, follow-up checks and record keeping.
What is a statutory excuse for right to work checks?
A statutory excuse is an employer’s defence against liability for a civil penalty if a worker is later found not to have the right to do the work in question. It is obtained by carrying out the prescribed right to work check correctly and keeping the required evidence.
Does a right to work check always create a statutory excuse?
No. The check must use a prescribed method, be completed at the correct time and cover the work the person will perform. An incomplete check, an unacceptable document or a failure to retain evidence may mean no statutory excuse is established.
What is the difference between a continuous and time-limited statutory excuse?
A continuous statutory excuse normally arises from acceptable List A evidence and lasts for the duration of employment. A time-limited statutory excuse normally arises from List B evidence and must be renewed through a follow-up check before it expires.
When must an employer complete the initial right to work check?
The prescribed check should normally be completed before the person starts employment. Completing it late may expose the employer to civil penalty liability for any period of illegal working before a compliant check was made.
How long must statutory excuse evidence be retained?
Employers should keep the check evidence securely for the duration of employment and for 2 years after the employment ends. The record should include the date on which the check was completed.
Can an online share-code check establish a statutory excuse?
Yes, where the employer uses the official Home Office online service, checks the photograph and personal details against the worker, confirms the permitted work and retains the profile page showing the date of the check. A share code supplied without completing the employer-side online check is not enough.
Can an IDVT check create a statutory excuse?
An eligible Identity Document Validation Technology check through an identity service provider can support a statutory excuse for qualifying British and Irish citizens. The employer remains responsible for satisfying itself that the person presenting for work is the person shown in the identity-check output.
When should an employer use the Employer Checking Service?
The Employer Checking Service is used in specified cases where the individual cannot prove status through the usual online or document routes, including some outstanding applications, reviews or appeals. A Positive Verification Notice can provide a time-limited statutory excuse for the period stated in the notice.
Does a statutory excuse protect an employer from every illegal-working consequence?
No. It is a defence against a civil penalty under the right to work scheme. It does not protect an employer that knowingly employs an illegal worker or has reasonable cause to believe the person is working illegally, and it does not remove sponsor licence compliance duties.
What is the maximum civil penalty for employing an illegal worker?
Under the code in force from 13 February 2024, the maximum is £45,000 per illegal worker for a first breach and £60,000 per illegal worker for a repeat breach. Whether a penalty is imposed and its amount depend on the facts and the statutory scheme.
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