From 1 October 2026, the right to work regime is being extended under the Border Security, Asylum and Immigration Act 2025, as set out in the updated Code of Practice on Preventing Illegal Working. In support of the new regime, the Home Office has published its updated draft: Employer’s guide to right to work checks.

The updated Code sets out the legal framework for the expanded right to work scheme, while the employer’s guide provides the detailed practical guidance for businesses.

This article explains the wider obligations from 1^st October 2026, which working arrangements are affected and the steps businesses can take to protect themselves against liability under the extended regime. Please read this article alongside the Home Office’s draft: Employer’s guide to right to work checks.

Right to work checks extended regime, two key changes

The first change extends the scope of the regime beyond the traditional  employment relationship and places new obligations on businesses that engage workers, individual sub-contractors, workers via platforms or via labour supply chains. 

The second change introduces the concept of ‘extended liability’, meaning that in some circumstances, a business may be liable for a civil penalty even where it does not have a direct contractual relationship with the individual carrying out the work. The penalties of non-compliance are significant for businesses. The current civil penalty starting point is £45,000 per illegal worker and increases to £60,000 per worker for repeat breaches.

Right to work checks: What is changing?

The existing right to work regime requires employers to carry out right to work checks before employing an individual. Where the correct check has been carried out, the employer can establish a statutory excuse, in other words protection against, liability for a civil penalty. 

From 1 October 2026, the right to work regime expands to cover other working arrangements. The new rules apply to these other working arrangements starting on or after 1 October 2026 and will not apply retrospectively. The new rules will apply where a repeat check is required on or after 1 October 2026. 

The way in which right to work checks are carried out remains broadly the same. Depending on the circumstances, checks should be done manually, using the online Home Office right to work check service or using a registered digital verification service provider. 

1. Extended right to work regime:

The existing regime applies to the traditional employment relationship. In this case, an employer must carry out a right to work check before an employee starts work and as necessary throughout the employment relationship. From 1 October 2026, the definition of employer for right to work purposes  is  extended.  The duty to carry out right to work checks will also apply to businesses which engage:

• individuals under a worker’s contract; 
• individuals as individual sub-contractors; 
• individuals through online matching services e.g online platforms.

These arrangements will be treated as employment for right to work purposes. Businesses will, therefore, need to consider whether a right to work check is required and to ensure this has been carried out properly to establish a statutory excuse. 

Businesses should no longer assume that the absence of a traditional employment contract means that the right to work regime does not apply. 

2. Extended liability:

The concept of extended liability is also being introduced. This is intended to address situations where a business may be treated as employing an individual even where the business has no direct contractual relationship with that individual.

When extended liability may apply

Extended liability is intended to apply in 3 scenarios:

1. where a business is contracted to provide work or services to a third party and engages another business to provide workers to fulfil that contract. For example, where Company Y (a hotel chain) hired company X to provide cleaning services to its various hotels, and Company X then hires Company Z to perform those services,
   
2. where an online matching service matches a service provider with a client or customer, and the service provider contracts with that client or customer,
   
3. where an individual is engaged under a contract which permits substitution (such as a food delivery service).
   
   

The updated draft employer’s guide gives helpful examples of where extended liability may apply on pages 43 and 44. Please read these for further detail on how the provisions apply in practice. A note on terminology: when reading the extended liability provisions in the Employer’s Guide, the term “person” is used in its legal sense and can include a business or other legal entity. This can be confusing, so come back to Scenario 1 above, which puts this into practical context.

The direct employer remains responsible for carrying out the right to work check. However, the extended liability provisions mean that businesses cannot automatically avoid responsibility simply because the individual is not directly engaged by them. This does not mean that every business in a contractual chain will be liable. The draft Code and employer’s guide  set out specific circumstances in which extended liability may arise, as outlined above, and the prescribed requirements (the steps) businesses can take to establish a statutory excuse to protect themselves against that liability. The draft employer’s guide explains these steps in detail on page 49.

Steps businesses can take to establish statutory excuse against extended liability

According to the guide, businesses need to take the following steps to protect themselves:  

• Contractual terms. Businesses should ensure that appropriate contracts are in place with the relevant party in the contractual chain, making it clear in the contract who is responsible for the right to work checks and giving the right to audit those checks.
  
• Substitution controls are put in place by the organisation responsible for the worker to identify the right to work status of the worker’s proposed substitute before the work commences; and 
  
• Business should ensure they receive details of the identity verification systems, such as work passes or attendance management systems, so that they can satisfy themselves that the individual who has undergone the right to work process is the individual carrying out the work. Where identity is re-verified at intervals, this must occur, according to the employer’s guide no less than once in any 24 hour period of activity.  
  

Arrangements out of scope

The new rules will not apply to individuals genuinely operating independent businesses contracting directly with clients or customers for the provision of goods or services. 

However, businesses should not simply rely on the label attached to the arrangement. Labels such as ‘self-employed’ will be evidence of the intentions of the parties but may not be a true reflection of the arrangement. 

Each arrangement will turn on its facts, so businesses should consider how the arrangement operates in practice rather than relying solely on the label attached to it. Check the examples in the guide.

What should businesses do now?

Businesses engaging workers, contractors or individuals where there is no direct employment by the business, should consider the following steps ahead of 1 October 2026: 

• Map your workforce to identify whether and where staffing arrangements fall within the scope of the new regime. 
  
• Review your contracts. Consider whether individuals are being supplied through labour supply chains (such as an employment business) and whether your current contracts would enable you to establish a statutory excuse if required.  
  
• Review substitution arrangements. Where a worker has a right to provide a substitute, consider whether the appropriate controls are in place to ensure you are able to establish a statutory excuse. 
  
• Review your right to work process to ensure your processes are compliant with the new rules and can ensure that the person who has completed the right to work check is actually the person carrying out the work. 
  
• Train relevant staff. Staff responsible for onboarding, managing contractors or supervising workers should understand the new rules.They must be able to supply relevant evidence of compliance with the Code and the statutory excuse against extended liability.
  
• When relying on third parties to supply right to work checks, ensure your provider supplies copies of these and keep them. The business should ensure it has the right to audit these checks at any time, subject to data protection implications, and will require a valid lawful basis.
   

Be aware that there is no implementation grace period for the 1 October 2026 changes. Businesses should, therefore, use the period before October 2026 to identify potential risk areas, review their contractual arrangements and right to work processes to ensure compliance with the new rules

Details on the new regime can be found in the draft employer’s guide to right to work checks which should be read in conjunction with the draft code of practice on preventing illegal working: Rights to Work Scheme for employers.

How we can help

This is a complex development and needs very careful planning to avoid potential liability. If you need advice on how the extended regime applies to your business, reviewing your workforce arrangements or the specific steps you need to take to protect your business, please get in touch,