16.09.2026

From 1 October 2026, under Section 48 of the Border Security, Asylum and Immigration Act 2025, the prevention of illegal working regime expands beyond traditional employee-employer relationships, requiring employers to carry out right to work checks on a wider range of working relationships.

The rules for conducting a compliant check remain the same but the scope of when these checks must be carried out will expand. Businesses that engage workers or individual sub-contractors, for example, may now need to conduct checks.

Extended scope

Under the changes, the scope of employers potentially subject to an illegal working penalty will be expanded beyond the typical employer-employee relationship to include the following (which are essentially treated as ‘employment’ for the purposes of the right to work regime):

  • Those engaging an individual under a ‘worker’s contract’ i.e. the individual provides services or work to a company under a contract, not amounting to an employment contract, but encompassing a large degree of personal service and subordination. Genuine self-employed professionals who contract directly with their own clients will fall outside this category.
     
  • Online matching services e.g. gig employers: Companies matching individual service providers with clients or customers will now be treated as employers for the purposes of carrying out a right to work check.
     
  • Individual subcontractors within a contractual chain: This covers the situation where a person is under a contract to provide work or services to a third party and enters into a contract with another employer who employs the workers to carry out all or part of the work or services required to fulfil that contract. 

Extended liability

Businesses towards the top of a contractual supply chain may in future be exposed to liability for a worker in the contracting/subcontracting chain who does not have a right to work even if it had no direct contractual relationship with the worker. 

Additionally, an employer may also be caught by the extended liability if it employs an individual to provide work or services, and the contract permits that individual to provide a substitute (any substitute must also have a right to work check before starting work).

While this is expansive, in practice the draft Employers’ Guide indicates that the Home Office will first seek to identify the employer who has the direct contractual relationship with the worker. However, in certain contractual arrangements, liability for illegal working may extend up the chain under the new provisions of extended liability. The Home Office draft guidance gives the following useful example.

Example: Warehousing and distribution

A logistics company is contracted by a retailer to provide warehousing services and the distribution of goods for the retailer’s own operations. The logistics company outsources the work or services to a third-party company to manage operations at the warehouses and engage workers to carry out the work.

The logistics company is contractually responsible to deliver work or services to the retailer and has outsourced the delivery of the work or services to a third-party company.

These contractual arrangements are within scope of the extended liability provisions. For the purposes of the right to work scheme, the logistics company may be treated as the employer of any individual who personally carries out the work or services through the contractual chain and may be liable for payment of a civil penalty if an individual is found to be working illegally.

The extended liability provisions do not apply to the retailer in this example because it is purchasing warehousing and distribution services for its own operations and is not responsible for providing those services onwards to another third-party.

Extended statutory excuse

A new ‘extended statutory excuse’ has also been introduced that can protect businesses from civil penalties, but only if strict requirements are met before work begins. These include having specific contractual terms in place making it clear who is responsible for carrying out right to work checks, implementing controls around substitute workers, and ensuring robust identity verification processes. Businesses using digital identity providers must also ensure that those providers are not only registered with the Office for Digital Identities and Attributes but are specifically authorised to conduct right to work checks.

Actions for employers

We recommend that organisations review all categories of workers they engage, update contracts and processes, verify digital checking arrangements, train relevant staff, and assess supplier compliance. Right to work compliance is no longer solely an HR responsibility. Procurement, operations and supply chain teams will all have an important role in ensuring compliance. Failure to comply could result in civil penalties of up to £60,000 per illegal worker and, in serious cases, criminal liability.

Individuals who are genuinely self-employed, operating their own business either in their own name or through their own company and who contract directly with clients remain out of scope of the right to work scheme.  

(Thank you to Tom Mayhew, an immigration specialist at Simons Muirhead Burton, for his assistance with this article).