On 1 October 2026, new laws are being introduced that replace previous legislation that defines illegal working and the circumstances in which an individual and an employer commit criminal offences and/or become liable for civil penalty.
Sections 8 and 15 of the Immigration Asylum and Nationality Act 2006 are being amended by the Border Security and Immigration Act 2025. These amendments regard the definition of who is in scope for right to work checks.
Traditionally, this has regarded a direct employment relationship with an employer and an employee, but from 1 October 2026, this relationship will broaden to include other forms of work engagement between an individual and a company and in some cases, it extends the liability for illegal working between more than one company.
The definition of ‘worker’ in this context is broadened to now be defined as:
“…an individual who is engaged to carry out work or provide services under a contract of employment (employee), a worker’s contract, as an individual sub-contractor, or through an online matching service, as defined for the purposes of the Right to Work Scheme.”
The definition of a ‘worker’s contract’ is defined as:
“… a contract (other than a contract of service or apprenticeship) under which: (a) an individual undertakes to perform work or services personally for another person (whether or not that person is specified in the contract), and (b) the person is neither a client nor customer of any profession or business undertaking carried on by the individual.”
The Home Office offers the following example of employment under a worker’s contract:
“An individual is registered with an employment business which supplies temporary workers to bars and restaurants during busy periods. The individual is engaged by the employment business on a contract for services and accepts short-term hospitality assignments when offered.
The employment business is the individual’s employer for the purposes of the Right to Work Scheme and is therefore responsible for the right to work check. The employment business may be liable for payment of a civil penalty if the individual is found to be working illegally while undertaking that work.”
This examples is easy to understand in terms of a typical employment agency providing workers as part of a service contract. The individual worker is contracted to the employment agency who place the worker and they become liable for the individual’s working status.
The employment agency also maintains the relationship with the temporary worker regardless of which bar they are working in, so each individual bar becomes less relevant to the worker’s employment status.
The Home Office then gives examples of where there might be cases where the liability for illegal working shifts where there is ‘extended liability’. The example below is given:
“A property developer wins a contract to build new homes. The developer engages other businesses through a chain of contracts to provide workers required to complete elements of the project, including laying foundations and bricklaying.
The property developer is contractually responsible for delivering work to a third party and relies upon a chain of contracts to provide workers and services required to fulfil the contract.
The contractual arrangements are within scope of the extended liability provisions. For the purposes of the Right to Work Scheme, the property developer may be treated as the employer of any individuals who personally carry out work or services through the relevant contractual chain and may be liable for payment of a civil penalty if an individual is found to be working illegally. To establish a statutory excuse, the developer must comply with the prescribed requirements in relation to the contractual arrangements.”
What is the difference between
Why does scenario (b) above have the potential to extend the liability for an illegal working penalty from the company providing the workers to the service provider?
To clarify, when the extended liability is engaged, the Home Office provide the following two signifiers:
The extended liability applies where:
In this sense, a bar does not have a contract with its customers (the drinkers) to provide a service. A worker is employed by an employment agency to work in a bar. The bar has a contract with the temporary agency to provide the worker in return for payment of fees.
What might change this to an extended liability is if the employment agency provide workers to serve drinks for an events company that has a specific contract with a customer.
In this sense, it is difficult to think of a bar analogy whereby an employment agency holds a contract with a bar to provide a worker who will in turn provide a worker to work in the bar. However, it is easier to imagine a house builder contracting with an intermediary company, who in turn contract another company or worker to work on their behalf and a chain of contracts exists.
If all of these questions are answered ‘yes’, then it is likely that the liability for illegal working does extend to you.
Critically, the responsibility for undertaking a right to work check still remains with the employer who has the direct contractual relationship with the worker.
The extended right to work does not transfer this responsibility to any other employer in the chain as long as the direct contractual relationship is easily identified.
Where it is difficult to understand who the direct contractual relationship is between, the liability for payment of a civil penalty can extend upstream through the chain of contracts through which the delivery of services is being delivered.
This is why from 1 October 2026, it is essential to do the following:
When contracting a company who provides workers, this contract between your company and this contracted company needs to specify the following:
The contracted company must provide right to work checks for any workers who are provided in order to service the contract.
No further workers can be subcontracted to work on the contract without your prior written consent.
Where a contract permits substitution of workers, a right to work check has to be undertaken before a substitute worker commences any work. The contracting party needs to be able to demonstrate robust processes for understanding when substitute workers will commence work.
This is perhaps the trickier requirement to meet.
If your company is contracting a third-party to provide work for a contract, and the third-party is responsible for undertaking the worker’s right to work check, and the third-party as agreed by contract to be responsible for undertaking these checks, then the remaining part of obtaining a statutory excuse against civil penalty is your own company’s ‘double checking’ process.
If an inspector arrives at a site on which your company are undertaking work for your customer, they can spot check the immigrations status of all workers on site. If a worker is found to be working illegally, the Home Office will then seek to identify the direct-employment relationship to this worker. It is therefore very important to make sure that any person working on-site either has a formal direct employer and that this employer is party to the service contract, or that the individual is working on their own behalf.
It is also important to have a process by which the direct employers of your company who are managing the work being undertaken for your customers has access to the right to work documents that have been provided and that there is an opportunity to verify identify.
The Home Office recommends that verification of a subcontractor’s identity is undertaken at 24 hour working intervals.
ID verification checks can be by any of the following methods:
Identity checks in exchange for ID passes, keys or fobs or work equipment.
On assignment and/or re-assignment to a line manager.
On access to a project site.
Each of these engagements allows for an opportunity for the subcontracted worker to provide evidence of their ID, which can then be recorded (recommended) and/or compared in person to the original right to work check to maintain that the person who undertook the right to work check is the same as the person who continues to work.
In answer to the initial question, in most cases where temporary workers are undertaking work on your company’s behalf, it is advisable to assume that you have an extended liability for illegal working for these workers.
It is key therefore to follow the above steps to be assured of a statutory excuse for civil penalty in the event that any of these workers are illegally working and their direct employment status hasn’t been established.