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Failed Right to Work Check: What to Do Next

By Brian CrockerLast reviewed: 22 October 2026

A failed right to work check is almost always one of two very different situations, and treating them the same is where employers get into trouble. Either the person cannot currently evidence their right to work — which does not mean they do not have one — or you have confirmation that they do not have it. The first calls for the Employer Checking Service. The second ends your statutory excuse the moment you carry on regardless.

The guidance is unambiguous about which mistake is costly. Acting too fast on the first case risks a discrimination claim; acting too slowly on the second risks a civil penalty and, in the wrong circumstances, a criminal offence.

This guide is for informational purposes only and does not constitute legal advice. Ending someone's employment engages employment law as well as immigration law — take advice from a qualified immigration solicitor and, on the dismissal itself, an employment law specialist.

First, work out which failure you have

The employer's guide to right to work checks opens this door deliberately wide:

"If at the time of the follow-up check the worker is unable to provide evidence that they have continued permission to work, this may not necessarily mean that they no longer have permission to work."

It gives examples: someone benefiting from section 3C leave while an in-time application is being considered, or a technical fault producing an incorrect share code or preventing one being generated at all. A blank result is a gap in evidence, not a finding of fact.

The instruction that follows is the one to build your process around:

"Employers should provide workers with reasonable opportunity to prove that they continue to have a right to work."

"Reasonable opportunity" is not defined in days, which makes it a judgement — but a judgement you should make deliberately and record, because it is the same judgement a tribunal would examine later.

The three outcomes, and what each one does to your statutory excuse

What happened Statutory excuse What it means
Check confirms right to work, no conditions preventing this work Established Employ, or continue employing; diarise any follow-up
Person cannot evidence it, but an application, appeal or review is outstanding Not yet — depends on the ECS Go to the Employer Checking Service; a Positive Verification Notice gives you a six-month excuse
Confirmed no right to work, or a Negative Verification Notice Gone if you continue Continuing to employ in the face of that knowledge removes the excuse entirely

On the first row, the guide is strict about the condition as well as the permission:

"only employ the worker (or continue to employ an existing worker if they are conducting a follow-up check) if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question. Employment offered must be in line with any restrictions."

A check that comes back positive but restricted — a student visa limiting term-time hours, for instance — is not a pass for work outside those limits. Our guide to student visa working hours covers the case where the permission is real and the work is not.

When to use the Employer Checking Service

If the person has an outstanding application, appeal or administrative review, or you cannot complete a check through the online service, the Employer Checking Service is the route that can still produce an excuse. The guide is precise about the conditionality:

"…have been issued with a Positive Verification Notice (PVN) confirming that the named individual is allowed to carry out the type of work in question; enabling them to hire or extend the individual's contract for 6 months from the date specified in the PVN."

Two practical points. The service is not instant — "The ECS aims to provide a response within five working days of receiving a valid request" — so a request made on the day an excuse expires is already late. And you have to tell them: "It is the employer's responsibility to inform the individual they intend to employ, or continue employing, that they are carrying out this check on them."

Our Employer Checking Service guide covers when you are required to use it, and the Positive Verification Notice guide covers the six-month excuse a PVN gives you — including the diary entry it creates, because that excuse expires and does not renew itself.

What a Negative Verification Notice actually means

This is the one notice that removes ambiguity, and the guide's own definition states the consequence in the same breath as the definition:

"'Negative Verification Notice (NVN)' is a negative confirmation that an individual does not have the right to work from the ECS. If an employer receives an NVN, but continues to employ this individual, the employer will not have a statutory excuse and may be liable for a civil penalty or be committing a criminal offence."

Note the two limbs. Not just the civil penalty — the criminal offence, which turns on knowledge, and an NVN is about as clear a form of knowledge as the scheme produces.

There is one NVN that means the opposite of what it looks like. If you contact the ECS about someone whose employment began before 29 February 2008 and has been continuous ever since, the guide says you will receive an NVN "because this employment is out of scope of the civil penalty scheme. This notice would not require the employer to take action and would not indicate that the individual does not have the requisite permission to work." Read the reason on the notice, not just the word "negative".

When the answer is confirmed

Once you know, knowledge is the thing that matters:

"In the event that information, such as from a follow-up check, confirms a worker is working illegally in the employer's workforce, the employer will no longer have a statutory excuse if they continue to employ them in spite of that knowledge."

The guide directs you to report it, and the report is worth making for two separate reasons:

"Employers are advised to report the circumstances to the Home Office via the helpline on 0300 790 6268. They must state that they are reporting illegal working in their workforce and request a Unique Reference Number (URN)."

The first reason is that it is what the guidance says to do. The second is arithmetic: under the Code of practice on preventing illegal working, self-reporting with a URN before the Home Office identifies the worker is mitigating factor 1, worth £5,000 per worker off a penalty — and it is one of the two factors that must both be present before the Warning Notice reduction is available at all. How a civil penalty is calculated walks through where that sits in the sum.

On ending the employment, take advice. The immigration side is settled — continuing to employ in the face of knowledge costs you the excuse. The employment-law side is not something this guide, or the Home Office guidance, decides for you: dismissal procedure, notice, and the risk of an unfair dismissal or discrimination claim are separate questions with their own law. Getting the immigration answer right and the dismissal wrong is a real and common outcome.

The forged document case is different

If the document turns out to be false, liability depends on what was reasonably apparent to you:

"If an employer is given a false document, they will only be liable for a civil penalty if it is reasonably apparent that it is false."

The guide defines that standard, and the wording changed on 1 October 2026. It is now what an employer "who is not trained in the identification of such documents, could reasonably be expected to identify… when undertaking a careful but brief inspection, without the use of specialist or technological aids."

Quotations from the employer's guide and the Code of practice in this article are taken from the texts for the scheme in force since 1 October 2026. The Code is the revised version laid before Parliament in draft on 30 June 2026, which SI 2026/700 brought into force on 1 October 2026; GOV.UK dropped "draft" from its title that day. The guide is the final version the Home Office published on GOV.UK on 1 October 2026, in place of its 11 September 2026 draft: it states that it "came into force on 1 October 2026". We last checked both on 5 October 2026. If a later version differs from the text quoted here, the later version governs — check the live employer's guide and the Codes collection before you rely on a detail.

Two words carry the load. Brief sets the expected inspection lower than a forensic one: you are not required to be, or to hire, a document examiner. Careful still requires you to actually look. A check you skipped is not the same as a forgery you could not have spotted in a careful glance — but the glance is the standard, not a forensic examination, and a defect that would survive one is not your liability.

The discrimination trap sits on this exact decision

The moment a check does not clear is when selective treatment is most likely and most visible. The guide's rule applies to how you respond, not only to whom you check: be consistent, and do not "make assumptions about an individual's right to work in the UK or their immigration status on the basis of their race, nationality, ethnic or national origins, accent, surname or length of time they have been resident in the UK."

Two employees in identical evidential positions should get identical process. If one gets a fortnight to sort out a share code and the other gets a same-day conversation, the difference is what a tribunal will ask about. Our guide to right to work checks for British citizens covers the checking side of the same duty.

Write down what you did

Whatever the outcome, the file should show the sequence: what the check returned, the date, what you asked for, what you were given, when you contacted the ECS, what came back, and what you decided. The record requirements are the same ones that apply to a clean check — an unalterable copy and a secure record of the date — and the guide is specific about what the date record has to be: employers must "retain a secure record of the date on which the check was conducted by either making a dated declaration on the copy or by holding a separate record", because "Simply writing a date on the copy document will not be sufficient as it does not, in itself, confirm that this is the actual date when the check was undertaken." Our record keeping guide sets out the standard.

Since 1 October 2026 this applies to more of your workforce

The scheme now reaches beyond employees. Section 48 of the Border Security, Asylum and Immigration Act 2025 extends "employing" to engagement under a worker's contract, engagement of an individual sub-contractor, and online matching services. So the sequence above applies to a casual worker whose share code will not generate, or a sub-contracted individual whose check comes back restricted — people who are often further from your HR process than an employee, and whose engagement may be shorter than the five working days the ECS takes to answer. The new categories are not backdated: both the guidance and the Code state that for a worker's contract, an individual sub-contractor or an online matching service, "a civil penalty may only be imposed where the employment commenced on or after 1 October 2026", so it is engagements starting from that date that bring this sequence with them. See what changes on 1 October 2026 and right to work checks for gig and casual workers.

The bottom line

Separate "cannot evidence it" from "does not have it" before you do anything else. For the first, give reasonable opportunity, use the Employer Checking Service where an application or appeal is outstanding, and remember it takes about five working days and that you must tell the person. A Positive Verification Notice buys a six-month excuse that then needs diarising; a Negative Verification Notice ends the excuse if you carry on. For the second, the statutory excuse goes the moment you continue in the face of knowledge — report it and request a Unique Reference Number, and take employment-law advice on the dismissal itself, because the immigration answer does not decide that question.

Sources

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