Right to Work Checks: What has changed?

From 1 October 2026, the UK’s Right to Work (“RTW”) regime has changed. The changes apply to working arrangements starting, and contracts entered into, on or after that date.

Employers have had a duty to prevent illegal working in the UK since 1996, but for most employers that just required them to carry out an RTW check on prospective employees during the recruitment process. From 1 October 2026, that is no longer the case. Section 48 of the Border Security, Asylum and Immigration Act 2025 significantly expands the arrangements that require an RTW check and introduces an extended liability regime, which means that in certain arrangements, the penalty for illegal working could extend beyond the direct employer. The Home Office has published an updated Code of Practice and Employer’s Guide, in force from the same date, explaining how the wider scheme works in practice.

What are the changes?

As well as for prospective employees, RTW checks now need to be completed for:

· Workers;

· Individual subcontractors;

· Individuals who find work through an online matching service (e.g. a gig economy platform) that connects them with clients – here, the check is the platform operator’s responsibility; and

· Individuals who carry out work as a substitute under a substitution arrangement.

The Home Office will look to the business with the direct contractual relationship with the worker for evidence of an RTW check, as before, but the introduction of extended liability means that the liability for illegal working may now extend further up the contractual chain in the following arrangements:

1. Where a contractor subcontracts some or all of the work to a third party;

2. Where an online matching service matches a service provider with a client; and

3. Where an employer’s contract with an individual permits the individual to send someone else to do the work in their place (a right of substitution).

Extended liability is intended as a backstop, most likely to be relevant where the direct employer cannot be identified or has failed to carry out a compliant check. It also only applies where a business is itself contracted to provide or arrange work onwards. A business simply buying in a service for its own use (for example, a retailer engaging a cleaning contractor, or a manufacturer using agency staff in its own factory) will not usually be caught.

Crucially, in the above scenarios, it will not be enough for a business to simply carry out its own RTW check on the individual. Instead, businesses will need to comply with (and be able to evidence compliance with) the prescribed requirements, which are summarised below:

· Contracts should set out the obligations for carrying out RTW checks, allow for compliance audits, confirm the position on subcontracting and allow for investigations or enforcement action to be taken if necessary.

· If substitution is permitted in the contract, processes need to be in place to ensure that any substituted workers have verified RTW checks completed in advance of any work or service being provided, the responsibility for the check is not being delegated to the individual, and enforcement action can be taken if necessary.

· Identity verification processes must be in place to ensure that the correct person’s RTW status has been checked.

Who is not caught?

Not every engagement falls within the new regime. Individuals who are genuinely in business on their own account, trading in their own name or through their own business and contracting directly with clients or customers, remain outside the scheme.

The Home Office’s guidance gives the example of a self-employed plumber who advertises to the public and works for multiple customers. Similarly, where a client contracts with an individual’s personal service company rather than with the individual, the client is not required to carry out a check. However, labels are not decisive: what matters is the reality of the arrangement, so borderline cases should be reviewed carefully.

In a standard agency arrangement, the employment business that engages the agency worker remains responsible for the check, and hirers are not expected routinely to duplicate it. Hirers should nonetheless ensure that their agency terms give them appropriate assurance that this is the case, with properly drafted warranties and indemnities in place.

The changes are not retrospective. Businesses do not need to carry out new checks on individuals engaged before 1 October 2026, and extended liability applies only to contractual arrangements entered into on or after that date; a pre-existing arrangement is not caught simply because work continues. However, any follow-up check carried out on or after 1 October 2026 (for example, where an individual’s permission to work is time-limited) must comply with the new rules.

Why does it matter?

The consequences of getting this wrong are significant. The Home Office’s Code of Practice on preventing illegal working sets the starting point for a civil penalty at £45,000 per worker for a first breach and £60,000 per worker for a repeat breach within three years, before any applicable mitigation. Under extended liability, these penalties can now be imposed on businesses further up the contractual chain, not just the direct employer.

Businesses may also face:

· Criminal liability where a business knows, or has reasonable cause to believe, that someone is working illegally: up to five years’ imprisonment and an unlimited fine;

· Business closure notices and compliance orders, director disqualification and the loss or downgrading of any sponsor licence; and

· Reputational damage, as the Home Office publishes details of businesses that receive civil penalties.

Carrying out the prescribed checks correctly,before work starts, gives you a statutory excuse against a civil penalty.

A prescribed check can be carried out in one of three ways: a manual check of original documents, a Home Office online check using a share code or, where permitted, a check through a certified digital identity service provider. Copies of the evidence must be retained for the duration of the engagement and for two years afterwards. Where an individual’s right to work is time-limited, a follow-up check must be completed before it expires to keep the statutory excuse in place.

What does this mean for you?

You should:

1. Review your worker engagement and supply chain processes and extend the existing RTW check process to all in-scope individuals, including workers and subcontractors.

2. Where you have concluded individuals (or groups of individuals) are out of scope, document that decision and the reasons for it.

3. Review and update all your relevant agreements and contracts, including those with subcontractors and any online matching services (particularly any entered into on or after 1 October 2026), to comply with the prescribed requirements and establish a statutory excuse against extended liability.

4. Review your contracts/terms of business with employment agencies/labour providers (and take legal advice if necessary) to ensure you are contractually protected as far as possible.    

5. Ensure you are completing RTW checks consistently and without discrimination in your approach.

6. Train HR, procurement and line managers on the expanded regime so that new engagements, substitutions and subcontracting arrangements are not overlooked.

7. Diarise follow-up checks for anyone with time-limited permission to work and keep copies of all evidence securely for the required retention period.

8. If you use a digital identity service provider for RTW checks, confirm that it is registered on the government’s Office for Digital Identities and Attributes (OfDIA) register and certified for RTW checks.

If in doubt, take advice.

The Employment Team at Leathes Prior are on hand to help should you require any further support or information on the above. If you would like to get in touch with the Team, please contact Eleanor Disney at edisney@leathesprior.co.uk.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.