Right-to-work checks – what UK employers should do now

On 17 July 2026, the Home Office published draft guidance to employers on the UK’s right-to-work check scheme, which is due to come into force on 1 October 2026. This guidance reflects the expanded right-to-work scheme, which brings new categories of working arrangements into scope and introduces extended liability provisions. With just over two months until the changes are due to take effect, businesses should review the draft guidance now, monitor for updates and ensure steps are taken to comply with the new requirements ahead of implementation.

Updates under the draft guidance

The draft guidance has been issued alongside the draft code of practice for employers on preventing illegal working and draft code of practice for employers on avoiding unlawful discrimination while preventing illegal working. As well as expanding the scope for right-to-work checks, the guide also sets out the steps employers can take to establish a statutory excuse against liability for payment of a civil penalty in the event of illegal working. The broadened scope of the UK’s illegal working scheme is governed by the Border Security, Asylum and Immigration Act 2025.

Under the draft guidance, an extended liability has been introduced. In certain circumstances, liability for civil penalties may extend beyond the direct employer (traditional employment relationship) and apply to businesses higher up the contractual chain – where illegal working occurs and the statutory requirements have not been met.

The draft guidance also details how businesses can establish a statutory excuse if the extended liability applies, meaning that even when employers may be potentially liable for an illegal working penalty, they can protect themselves from liability by establishing a statutory excuse if they meet the ‘prescribed requirements’. The prescribed requirements include having a written statement with necessary contractual terms and conditions in place before the work commences, and/or implementing a process that ensures substitution controls are set up.

What does this mean for employers?

If you are a UK employer, you should start assessing whether your current workforce arrangements could be affected. The update is particularly relevant to organisations which engage with the following:

• Hiring independent contractors or consultants;
• Subcontracting services to other businesses;
• Operating through multi-tier labour supply chains;
• Using online platforms or matching services to source workers; or
• Contracting that allows substitution of workers to provide services.

Employers in these businesses should strengthen their right-to-work check compliance to ensure that it not only covers their recruitment process, but also workforce governance and contract management. It is also recommended that employers review their HR systems to ensure they maintain accurate right-to-work check records and that their organisations follow the necessary steps to carry out compliance.

The expanded right-to-work scheme imposes a bigger responsibility on employers to review right-to-work checks and prevent illegal working, even for workers who are not their direct employees. Failure to comply with the updated right-to-work check scheme may expose employers to civil penalties, criminal liabilities and it can also adversely affect their sponsor licences.

What steps should be taken?

Subject to the proposed guidance, employers can follow the practical steps below for compliance arrangements:

• Review current and future contractor, consultant and subcontracting agreements;
• Identify workforce arrangements that can fall under the new extended liability regime;
• Ensure internal right-to-work check procedures and record-keeping systems remain compliant and align with the proposed changes;
• Review identity verification procedures and any third-party digital verification providers, and make arrangements to switch providers if necessary; and
• Provide updated training for HR, recruitment and procurement teams.

It should be noted that the term ‘Digital Verification Service’ (DVS) has been replaced with the ‘Right-to-Work Digital Verification Service Provider’ (RtW DVSP), and from 1 October 2026, it will be mandatory for that chosen provider to be registered with the Office for Digital Identities and Attributes if employers choose to use a RtW DVSP to conduct right-to-work checks.

It is important for employers to remember that under the new expanded regime, they should not assume that right-to-work check obligations only apply to employees. They must keep pace with the changes set out in the guidance and review existing direct and indirect employment arrangement regularly. Before the changes officially take effect, carrying out a thorough compliance review can identify gaps in existing procedures and reduce future enforcement risks.

Gherson insight

The proposed changes to the right-to-work scheme are likely to require employers to rethink their existing compliance and right-to-work check procedures. Employers and businesses who also have indirect employment relationship with contractors, subcontractors or outsourced service providers are advised to actively review their workforce and contract arrangements, as well as records on their system before the new framework takes effect.

Frequently asked questions

What changes are being made to UK right-to-work checks from 1 October 2026?

From 1 October 2026, the UK right-to-work scheme will expand under the Border Security, Asylum and Immigration Act 2025. The proposed changes extend right-to-work obligations beyond traditional employment relationships and, in certain circumstances, may impose liability on businesses higher up the contractual chain if illegal working occurs.

Which businesses are most affected by the new right-to-work guidance?

The changes are particularly relevant for businesses that engage contractors, consultants or subcontractors, operate through labour supply chains, use online worker-matching platforms or have contractual arrangements allowing worker substitution. These organisations should review their workforce structures and compliance procedures before the new rules take effect.

Can a business be liable for illegal working if the worker is not its direct employee?

Potentially, yes. Under the proposed expanded scheme, liability may extend beyond the direct employer where the statutory conditions are met. Businesses should review their contractual arrangements, ensure appropriate right-to-work processes are in place and take steps to establish a statutory excuse where applicable.

What is a statutory excuse in right-to-work checks?

A statutory excuse is a legal defence that may protect a business from a civil penalty for illegal working if it has complied with the prescribed right-to-work check requirements. Under the draft guidance, this may include having appropriate contractual provisions, maintaining compliant records and following the required verification procedures.

Should employers review their contracts before 1 October 2026?

Yes. Employers should assess existing and future agreements with contractors, consultants and subcontractors, review right-to-work policies, update record-keeping procedures and ensure HR, recruitment and procurement teams understand the new requirements before the changes come into force.

What is a Right-to-Work Digital Verification Service Provider (RtW DVSP)?

From 1 October 2026, employers choosing to use a digital identity verification provider for right-to-work checks must use a Right-to-Work Digital Verification Service Provider (RtW DVSP) that is registered with the Office for Digital Identities and Attributes. Businesses relying on digital verification should review their current provider before the new requirements take effect.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on all UK visa and immigration matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on X, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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