The Regulations will bring Section 48 of the Border, Security, Asylum and Immigration Act 2025 into force from 1 October 2026, and businesses should take steps now to prepare for this. The Home Office has already published new guidance for employers on these changes.
What is changing?
Businesses are already accustomed to carrying out right to work checks on their employees but from 1 October, this duty will be extended beyond contracts of employment so that it covers:
- Workers, rather than just employees
- Individual contractors and sub-contractors
- Online matching services providing details of individuals to potential customers, or gig economy platforms
The extension to contractors and sub-contractors will be a significant change for businesses as traditionally they have only been encouraged to check these individuals have the right to work in the UK.
What are the potential penalties for getting it wrong?
Where someone who does not have the correct right to work is employed or engaged by a business, the business can be fined by the Home Office. 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 right to work 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 in order to have a defence.
What steps should businesses be taking now?
Although the changes will not come into force until 1 October, we recommend that businesses take steps now to prepare. These include:
- Review their current right to work checking process to ensure they meet the Home Office standards
- Train staff on the correct process to be followed and make sure this includes any managers who may engage contractors directly without the input of their HR teams
- If a business has individuals they regularly contract with, make them aware that this requirement will be coming into force soon.
What about agency workers?
Where a worker is employed by an agency, they would seem to fall outside the new Regulations, but with the wider definition of worker it is important businesses take care in this area. We recommend reviewing any contracts with agencies to ensure they are carrying out proper checks and a business has a right to see evidence of this before using an agency worker.
Overall, these changes will greatly increase the right to work risks for any business that uses temporary staff or external contractors. Given the potential penalties involved it is important a business takes steps to prepare for the changes and adapt their processes. If you need advice or want to know how our specialist employment and immigration teams can help, please get in touch.
