Expanded illegal working regime: draft Employer's guide to right to work checks published

The Home Office has published a draft updated Employer's guide to right to work checks, due to come into force on 1 October 2026. This is a substantial rewrite reflecting the expanded right to work scheme under the Border Security, Asylum and Immigration Act 2025, which brings new categories of working arrangements into scope and introduces extended liability provisions. With only weeks until the changes are due to take effect, businesses should review the draft guide now, monitor for updates and ensure steps are taken to comply with the new requirements ahead of implementation.

The three key documents providing guidance to businesses on the right to work scheme have now been updated as follows:

Draft Employer's guide to right to work checks (published on 16 July 2026);
Draft Code of practice on preventing illegal working (published on 30 June 2026); and
Draft Code of practice on avoiding unlawful discrimination while preventing illegal working (published 30 June 2026).

This article summarises the most significant changes to the Employer's guide and comments on points of divergence with the draft Code of practice on preventing illegal working. It also includes some examples of live issues for resolution and signposts to information on what steps businesses should take now.

Significant changes in the draft Employer's guide to right to work checks

As part of preparing for the expanded right to work scheme, new definitions and a new section 3 headed 'Application to non-direct contractual arrangements: Extended liability' have been incorporated into the draft Employer's guide to right to work checks. These broadly align with corresponding text in the draft Code of practice on preventing illegal working. Corresponding text is also added regarding right to work digital verification service providers (RtW DVSPs) and how they may be used.

The following specific changes to the guide are notable:

Businesses are no longer 'strongly encouraged' to check that their contractors and labour providers carry out compliant right to work checks on people they employ, engage or supply (including substitutes), or to carry out these checks themselves – this indicates the expanded right to work scheme is considered sufficient to meet the Home Office's previous concerns about gaps in scrutiny;
There are 14 new detailed examples including scenario-based guidance, covering which working arrangements are within or outside the scope of the expanded right to work scheme;
There is expanded guidance on how to avoid discrimination when carrying out right to work checks, including a cross reference to the draft Code of practice on avoiding unlawful discrimination while preventing illegal working;
Clarification is provided that expired biometric residence permits (BRPs) aren't acceptable proof of right to work, and that an individual who has been issued with a short-validity vignette (sticker) in their passport must create an online UKVI account and get access to their eVisa, even before travelling;
References to 'person' are frequently replaced by 'individual' when referring to workers, 'employee' is replaced with 'worker' and 'you/your' is replaced by 'employer' (which now refers to the broader meaning of this term to include businesses engaging individuals under a worker's contract or as an individual sub-contractor, as well as online matching services engaging service providers);
The section on supplementary employment is made more detailed, to incorporate the more restricted occupation entitlements for Skilled Workers with a certificate of sponsorship issued on or after 22 July 2025;
The section on recommended fresh right to work checks for TUPE transferees is expanded and re-structured;
The section 'Do you have any questions?' is replaced by a 'Support for employers carrying out right to work checks' section, with expanded references to the UKVI employer enquiry helpline, how to report illegal working and how to access Home Office training;
There is a new section on 'Support for workers', which signposts workers to the 'View and prove' service for information on their immigration status, and to the UKVI resolution centre for technical difficulties and errors relating to eVisas;
Information on RtW DVSPs is condensed into the main body of the guide;
Content on EEA citizens is consolidated; and
Redundant information on employment of Ukrainian nationals and service providers from Switzerland is removed.

Divergence from the draft Code of practice on preventing illegal working

Detailed information on right to work checking processes is now contained in both draft Employer's guide to right to work checks, and in the draft Code of practice on preventing illegal working. Previously, the Code of practice focused predominantly on how the Home Office administers the imposition of illegal working civil penalties and determines their amount, as well as the processes for objecting to or appealing civil penalties.

Historically, the Employer's guide to right to work checks has been more intensively maintained than the Code of practice. Going forward however, both documents will need to be reviewed together to avoid inconsistencies arising.

There are currently some contradictions between the two documents which will need to be raised with the Home Office over the coming weeks.

Live issues requiring clarification

The guidance documents and underlying secondary legislation setting out how the expanded right to work scheme should operate in practice have only been made publicly available starting from the end of June, with the draft of the main Employer's guide only appearing on 16 July. This gives businesses a very short time to make operational changes and to put in place appropriate contracts with RtW DVSPs and other parties ahead of 1 October 2026, especially as the preparation phase is occurring over the summer holiday period.

We are intending to raise the possibility of an implementation period being considered by the Home Office, during which time businesses may be issued with a notification of a potential breach under in relation to the newly-included categories of worker or under extended liability, but civil penalties will not be imposed. We'll provide an update if an implementation period is agreed.

Other (non-exhaustive) points needing clarification include:

When extended liability will be applied to existing contracts, or only ones established on or after 1 October 2026 (it is clear in the draft Code of practice on preventing illegal working that civil penalties will only be imposed for those employed on or after 1 October 2026 under a worker's contract, as an individual subcontractor or via an online matching service);
Whether partners and members of LLPs are intended to fall within the definition of 'worker's contract';
Whether a Personal Services Company might be considered to be an employer for the purpose of the right to work scheme; and
What the evidence retention period is for evidencing compliance with extended liability statutory excuse requirements, and how the Home Office expects this should operate in practice.

What should businesses do now?

While we recommend you familiarise yourself with the draft guidance documents as published, we also anticipate that certain aspects of the right to work scheme will be clarified over the coming months. You can sign up to receive our updates direct to your inbox here.

See our earlier article for other recommended steps to take now.

How we can help

Each business will need to take steps to comply with the new requirements in line with the relationships and contracts it has in place. These may evolve over time, so right to work compliance will need to be incorporated into the establishment of new arrangements from the outset.

We can assist with: