Right to Work Checks: New rules, wider liability and increased risk
6th July, 2026
Historically, employers have had a clear understanding that they need to check their employees' right to work or risk being found to be employing an illegal worker and receive a fine of up to £60,000.
From 1 October 2026 the requirement to check right to work is expanding significantly and so is the exposure to financial penalties for illegal working.
What is changing?
The Border Security, Asylum and Immigration Act 2025 includes provisions to widen the right to work regime beyond employees and bring contractors, self-employed and gig economy arrangements into scope. We now know that these provisions will come into force on 1 October 2026 and in the past few days have seen draft guidance giving insight into the new obligations imposed on all businesses.
This change is intended to modernise right to work compliance and bring it in line with modern ways of working, capturing the growing use of agency workers, contractors, subcontractors and gig economy arrangements.
The updated draft Code of Practice on Preventing Illegal Working: Right to Work Scheme has been laid before Parliament and is due to come into force on 1 October 2026, however this does not mean that changes won’t be made before the Autumn.
As it stands, the Code extends the definition of an employer (for right to work check purposes only) to capture the engagement by a business of:
- Contractors
- Subcontractors
- Agency workers
- Workers supplied via third parties
- Individuals engaged via intermediaries or labour providers
- Individuals matched to work through third-party arrangements (e.g. platforms or introducers)
Extended liability
The Government’s primary position is that responsibility for carrying out the right to work check will generally sit with the party directly engaging the worker. However, there remains ambiguity about where liability will sit if someone is working illegally, and there is certainly a suggestion that liability may extend beyond the organisation who holds the direct contractual relationship with the worker, such that it could sit elsewhere in the supply chain.
Given the greater risk of a civil penalty, businesses will no longer be able to rely on third party checks by agencies and similar as a defence to engaging an illegal worker and should prepare to conduct their own checks.
As is currently the case, carrying out a compliant right to work check will give the organisation the ‘statutory excuse’ i.e. protection from a civil penalty.
To obtain the statutory excuse where a business is not the direct employer, they will need to:
- Have a written contract in place before the work or service commences, which includes prescribed terms and conditions as stipulated by the Home Office.
- Complete a compliant right to work check on the worker and any substitute worker.
- Have proportionate systems and processes in place to carry out imposter checks.
What do businesses need to do?
- In the first instance, businesses need to understand what contractual arrangements they have in place with staff and service providers to understand the impact of these changes.
- Next, the contractual documents themselves will need to be examined to determine whether they need amending in line with the Code of Practice to give the business the opportunity to dispute liability if illegal working is found to have occurred.
- Where right to work checks are conducted by a Digital Verification Service Provider (DVSP) (previously referred to as an IDSP (Identity Verification Service Provider)) the identity of the DVSP and their processes will need to be reviewed.
- Onboarding processes and right to work check policies and procedures will need to be updated and appropriate resource allocated for the extended checks required.
- New due diligence and audit processes will need to be put in place when contracting with third parties.
- HR, Recruitment and Procurement teams should be trained on the expanded requirements.
These changes will have a significant impact on all businesses, regardless of their size. Those registered with the Home Office as sponsor licence holders will be well aware of the increasing scrutiny and compliance obligations placed upon them and the need to plan ahead.
Webinar
The expansion of UK right to work checks: How employers can prepare
While we wait for further guidance from the Home Office, including worked examples to show how the rules will apply across different business models, you can register for our webinar on 6 August 2026 at 10am in which we will look at the changes and practical steps in more detail.
Register interest for our Right to Work Compliance Toolkit
Our Right to Work Compliance Toolkit has been designed to help businesses meet their newly expanded duty to present illegal working. Simply contact us via the form below and a member of the team will be in touch to explain more.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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