From October 2026, employers’ duties on right to work checks are changing, and a wider group of people performing work for the organisation will need to be checked. This means that processes will need to be updated to avoid the liability that will arise if they are found to be employing someone illegally.
Background
The Border Security, Asylum and Immigration Act 2025 received Royal Assent on 2 December 2025 and creates a framework of new, enhanced powers and offences to improve UK border security and strengthen the asylum and immigration system. The Act significantly expands right to work check obligations beyond traditional employment contracts to include the gig economy, casual workers, and online matching services.
Employers will need to prepare to adapt their processes to the new legal framework to safeguard against potential penalties.
What is changing?
Section 48 of the Act will come into force on 1 October 2026, extending right to work requirements to cover worker contracts, individual subcontractors, and online matching platforms in sectors like construction, food delivery, beauty salons, courier services and warehousing. This includes “gig economy” workers.
The sanctions for noncompliance, which include fines and imprisonment, will also be extended to include these checks.
Government Codes of Practice and Guidance
This new legislation is accompanied by updated statutory guidance in the form of a draft Code of practice on preventing illegal working: Right to Work Scheme for employers, supported by a new draft Employer’s guide to right to work checks. They explain how the expanded regime will operate. A new draft of the Code of Practice for Employers: Avoiding Unlawful Discrimination has also been released. These will apply to all new employment starting on or after 1 October 2026 and repeat checks carried out on or after that date.
Code of Practice for Employers: Avoiding Unlawful Discrimination
This Code has been substantially updated. It now emphasises employers’ responsibilities for preventing discriminatory behaviour in relation to right to work checks. It sets out that having an equality policy in place and implementing it, and training employees on preventing discrimination by those carrying out right to work checks, are reasonable steps for employers to take.
It also clarifies that employers should not treat candidates less favourably because of time‑limited permission to work, including where this is evidenced via an eVisa. In the same vein, there is recognition in the code that technical issues may arise beyond an individual’s control (eg broken share code systems) which could prevent them from demonstrating their right to work using the Home Office online service. In such cases, the code states that they must not be discriminated against or treated less fairly.
Finally, the draft Code encourages employers to give individuals reasonable opportunity to show they have the right to work try by keeping jobs open for as long as possible, unless urgent recruitment needs prevent that.
Code of Practice on Preventing Illegal Working: Right to Work Scheme for employers
This draft Code sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working and the factors that the Home Office takes into account when determining the amount of any penalty issued. This is supported by the Employer’s Guide to Right to Work Checks.
The Home Office’s draft revised Employer’s Guide to Right to Work Checks sets out the steps employers must take to prevent illegal working in the UK and establish a statutory excuse against civil penalty liability by carrying out right to work checks. A statutory excuse is a legal defence that protects an employer from civil penalties if someone completing work for them is later found to be working illegally.
This guidance sets out the notion of “extended liability” under the Act and how that will extend the civil penalty liability beyond the employer that holds the direct contractual relationship with the worker, ie where there is a right of substitution in the contract. This means checks will need to be carried out on sub-contractors, and those they sub-contract to in turn.
To establish a statutory excuse, an employer must have completed the prescribed right to work checks correctly. The “prescribed requirements” are either carrying out a right to work check before employment starts where there is a direct contractual relationship with the worker, or, in the case of “extended liability” where there is a non-direct contractual arrangement, putting in place relevant contractual terms and conditions, substitution controls and identity verification systems before the work/services commence.
The guidance will not apply to individuals operating an independent business either in their own name or through their own company and who contract directly with clients or customers for the provision of goods or services.
If adopted in full by Parliament, the amended guidance will come into force on 1 October 2026.
Impact on employers
When these changes come into force, anyone working in the name of the organisation, even without a direct contractual relationship, will need to undergo right to work checks. For example, if work is delegated to a subcontractor or an individual is substituted to perform services, the business will be held liable if that person does not have the legal right to work in the UK.
This extension of liability is particularly significant for industries that rely heavily on casual or gig economy workers.
Stronger penalties for noncompliance
The updated legislation underscores the importance of compliance by introducing stricter penalties for employers who fail to meet their obligations. Organisations that are found to be employing individuals without the right to work could face significant civil penalties, even in cases where the individual’s work has been subcontracted or delegated.
To mitigate risks, employers are encouraged to:
- review and update their right to work policies and procedures
- conduct regular audits of their workforce and supply chain to identify any gaps in compliance
- provide training to managers and HR personnel on the new requirements.
With not much time until the changes come into force in October 2026, now is the time to act and ensure the organisation is ready for the new era of right to work compliance.
If you need some advice on Right to Work Compliance in view of these changes please contact Carrie
