Businesses have been warned not to rely on digital verification services to run right-to-work checks on foreign nationals employed in the UK.

Legal experts have pointed out that using a digital verification service (DVS) – or an Identity Service Provider (IDSP) as they were previously known – to check the right to work of foreign nationals does not establish a “statutory excuse” because they are intended for employees who are British or Irish, not for nationals from other countries.

The key distinction employers must understand is that DVS checks are currently only available for holders of valid British and Irish passports (or Irish passport cards), and therefore their use is limited” – Anna-Elise Harvey, Clarion

This, said Emma Brooksbanks, immigration partner at law firm Freeths, left the employer “in the firing line if one of their foreign workers is discovered to be working illegally”. She added that 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.

A statutory excuse is an employer’s defence against a civil penalty. In order to establish a statutory excuse in the event that an employee is found to be working illegally, employers must carry out one of: a manual RTW check; an RTW using a DVS (British and Irish citizens only); or a Home Office online RTW check (non-British and non-Irish citizens).

The type of check conducted will depend upon the individual’s nationality, what kind of permission they have to work in the UK and, where appropriate, the individual’s preference.

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However, the Home Office’s crackdown on illegal employment has increased scrutiny of when exactly a statutory excuse against liability for a civil penalty has been established, if it is later discovered that an employee has lost their right to work.

Anna-Elise Harvey, senior associate in employment and business immigration at solicitor firm Clarion, told Personnel Today that there was “some confusion among businesses about the effectiveness of DVS in providing adequate statutory protection. Some employers are questioning whether DVS checks offer sufficient excuse if they inadvertently employ someone without the right to work.

She added: “However, the Home Office guidance sets out that conducting checks in line with their guidance, including DVS checks through certified Identity Service Providers, will provide employers with a statutory excuse. Until the introduction of this option, there were no circumstances under which it was acceptable for employers to outsource their right to work checks to a third party.

“The key distinction employers must understand is that DVS checks are currently only available for holders of valid British and Irish passports (or Irish passport cards), and therefore their use is limited. When properly conducted through certified providers, these checks do provide a continuous statutory excuse, provided the check is executed compliantly.”

If illegal working is discovered in a business, the Home Office can issue a penalty of up to £60,000 per illegal worker. It will publish the illegal working finding, which risks damaging a business’s reputation. The business may also lose its sponsor licence and have all visas held by sponsored workers cancelled.

We have seen employers – including some large, household names – using DVS services for all employees, including foreign workers” – Emma Brooksbanks, Freeths

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, such as the Surrey chip shop fined £40,000 after it was found one of its managers was working under a false identity.

More than £30 million has been issued in civil penalties since the end of 2023, with illegal working visits increasing by about 40% in the past 18 months.

Brooksbanks 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.”

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