Updated legislation and an updated code of practice on preventing illegal working extends, from 1...
Right to work checks from 1 October 2026
Updated legislation and an updated code of practice on preventing illegal working extends, from 1 October 2026, the scope of ‘employers’ who may be subject to a civil penalty or criminal sanction - bringing a far wider range of working arrangements into-play for right to work (RTW) checks.
The updated code of practice applies:
- when determining civil penalty liability where an initial right to work check on a prospective individual worker or repeat check on an existing worker is required on or after 1 October 2026
- when determining civil penalty liability in relation to the expanded working arrangements, where the requirements to establish a statutory excuse against liability apply on or after 1 October 2026, and
- when calculating illegal working civil penalty amounts where a breach occurs on or after 1 October 2026
A new section has been inserted into the Immigration, Asylum and Nationality Act 2006 which significantly extends the scope of ‘employers’ who may be subject to an illegal working civil penalty or criminal sanction. For the purposes of the RTW scheme, from 1 October 2026, references to an ‘employer’ of an ‘individual’ will include:
- employing an individual under a contract of employment (contract of service or apprenticeship)
- engaging an individual under a ‘worker’s contract’ (broadly where the individual undertakes to perform work personally and the other party is not the client or customer of the individual’s own business)
- engaging an ‘individual sub-contractor’, and
- operating an ‘online matching service’ and providing details of an individual ‘service provider’ to clients or customers
Where someone who does not have the correct RTW is employed or engaged by a business, the business can be fined. The starting fine for a first offence is £45,000 per illegal worker and if a business has previously been fined this increases to £60,000.
The only defence to an illegal working claim is to show that a proper RTW check has been carried out and records of this have been retained. From October, where a business relies on a check carried out by a digital provider, they need to ensure the provider is on the Home Office approved list to have a defence.