Right to Work checks to be redefined from 1 October 2026

From 1 October 2026, Home Office rules on Right to Work checks will see a major update. Under Section 48 of the Border Security, Asylum and Immigration Act 2025, civil penalty liability will be expanded beyond the employer-employee relationship, and the ways in which checks can be carried out will be more clearly defined.

It is important that employers and employees alike are informed – failure to undertake a right to work check correctly can have profound implications. That is why we wrote this explainer, answering the main questions we foresee being asked.

A brief introduction to Right to Work checks

Ever since the Immigration, Asylum and Nationality Act 2006 was passed, employers have needed to ensure that all employees have the Right to Work in their respective roles. If a worker is found to have been employed without the adequate Right to Work, the employer is subject to a civil penalty. Presently, this can be as much as a £45,000 fine per worker for an initial offence and up to £60,000 per worker for repeat offences. Additionally, employers holding sponsor licences would likely have these revoked, in accordance with Home Office guidance.

The onus is and has always been on the employer to conduct the Right to Work checks correctly, to establish a statutory excuse for the Home Office. This way if the Home Office finds that a worker may have been working without permission to do so, but the employer conducted its checks adequately, the employer would not face repercussions.

When will businesses need to conduct a Right to Work check?

Until now, Right to Work checks were only mandatory for employer-employee relationships. This scope is now being expanded to cover other types of relationships as well. A business or employer will need to:

• Check the Right to Work of individual workers, contractors and sole traders, where the individual is directly engaged. They should also run checks for any substitutes provided under a contract before they commence work.

• Check platform users’ Right to Work, where the business runs an online platform to connect workers with clients or employers.

• Check platform users’ Right to Work, where the business operates via an online platform and directly engages individuals to provide a service (common in sectors, like food delivery, taxi services and cleaning).

• Control subcontracting down their supply chains (most likely through contractual arrangements), so that adequate Right to Work checks are carried out by contractors or individuals using the business’ platform.

Clients and customers are not legally responsible for Right to Work checks. The liability belongs entirely to the business or employer that hires and pays the worker directly.

This includes those under a contract of employment, so a hotel is responsible for carrying out a Right to Work check for a receptionist it employs. Additionally, an online matching service — which connects a cleaner with a homeowner, for example, — is responsible for the cleaner’s Right to Work check. You can read further Home Office examples of contractual arrangements that may be in scope as well as those that are not here.

The Home Office expects those engaging with this issue to be compliant with the Right to Work guidance. It is recommended that the guidance is reviewed whenever a Right to Work check is performed to ensure accuracy. 

How can businesses conduct these checks?

There are a few ways that Right to Work checks can be conducted, and that depends on the individual’s immigration status. For British and Irish citizens, a current or expired manual passport or passport card check will be sufficient. Otherwise, in most cases an approved digital verification service provider (DVSP) will need to confirm the individual’s Right to Work.

For non-British/Irish citizens, a digital check will normally need to be done via the Home Office’s portal. The individual will provide their date of birth and share code starting with ‘W’, which the business or employer will enter into the online service to receive an outcome.

Employers and businesses need to retain the Right to Work check documentation for at least two years after the end of that individual’s engagement or employment.

Is one Right to Work check enough?

Some individuals have no time limits placed on their Right to Work status, in which case one check, in which case one check will be sufficient. This may be because they are a British citizen, Irish citizen, hold Settled Status under the EU Settlement Scheme (EUSS), or hold Indefinite Leave to Remain (ILR), and their right to work will be unchanged unless they lose that immigration status.

Other individuals will have a time-limited Right to Work, because their permission to remain (or visa) expires on a set date. In these cases, businesses and employers will need to:

• Conduct follow-up checks on or before the individual’s permission to remain expires.

• Conduct follow-up checks on or before the expiry date on a Positive Verification Notice, where the Employer Checking Service (ECS) is used.

• Keep confirmation of student visa holders’ academic term dates, because their right to work is different during and outside of term time.

Not every Right to Work is the same; it varies significantly depending on the immigration status. While some individuals have an unrestricted right to work anywhere, others hold a restricted right that limits them to a specific employer, role, or sector.

A fine line between caution and discrimination

The seriousness of the implications when one cannot establish a statutory excuse for the Home Office means that many employers and businesses will exercise significant caution. But it is important that businesses and employers stick to the guidance, and obtain legal advice, when there is uncertainty or a disagreement with the individual, whose Right to Work they are checking.

Under the Equality Act 2010, race and nationality are protected characteristics, and both direct and indirect discrimination on these grounds is unlawful. If a business or employer incorrectly determines that an individual does not have the adequate Right to Work and subsequently excludes that individual from accessing employment or providing a service, the individual may have grounds to take legal action.