Home Office updates employer right to work guidance
From 1 October 2026 right to work checks are expanding to non-employees. The Home Office has updated its draft employer’s guide to right to work checks applicable from 1 October and we explain the main changes.
Our FAQs set out that from 1 October 2026, where you directly engage someone under an employment contract, a worker’s contract, an independent contractor, or an individual through an online matching service you will need to check their right to work before they start work.
In addition, as well as where you directly engage someone you could have an indirect responsibility to check someone’s right to work under the new extended liability rules. This is likely to be more relevant for organisations in sectors where subcontracting is more common, such as construction, consulting, IT and the gig economy. Where the rules apply you will need to satisfy the prescribed requirements in order to form a statutory excuse if there is an illegal worker.
The key updates to the Home Office draft employer’s guide to right to work checks applicable from 1 October include:
- When the extended liability rules will apply. The previous version of the draft Home Office guidance said the extended liability rules will apply where an individual commences work on or after 1 October. The updated version changes that position. The guidance now says it is where the relevant contractual arrangements are entered into on or after 1 October. The practical effect of this should be helpful in that any existing commercial contractual arrangements you have in place should not need to be amended in advance of 1 October. It is only new contracts entered into on or after 1 October which will need to meet the prescribed requirements so you have a statutory excuse in extended liability situations. As an aside, the underlying legislation and draft Home Office code of practice on this position has not changed. However, the Home Office’s stance on this position seems clear in its updated employer guidance and so we suggest you follow that guidance. See questions 4, 9, 10 and 15 of our FAQs for more details. (For the avoidance of doubt, as mentioned above, for direct relationships it is still where the work commences on or after 1 October that the new rules will apply – see questions 4 and 7 of our FAQs for more information on direct relationships).
- Employers can delegate responsibility for carrying out right to work checks. As an employer you will always be responsible for right to work checks and liable for any civil penalty. However, in another helpful update the guidance now specifies that from 1 October the responsibility for carrying out right to work checks may be delegated to “individuals or members of staff acting on behalf of the employer, including workers, agency workers, or others working under the employer’s control, direction and who are accountable to the employer.” If the check is not carried out properly the employer will remain liable for a civil penalty. See question 8 of our FAQs for more details.
- If you use an intermediary when using a right to work digital verification service provider (RtW DVSP). Our FAQs at question 8 explain that where you want to use a digital verification service provider, from 1 October it must be a registered RtW DVSP. In the updated guidance a new requirement has been added in relation to if you procure a registered RtW DVSP’s services through an uncertified intermediary such as a referencing or screening agency. If you do, the intermediary must clearly identify the certified and registered RtW DVSP actually carrying out the check. The certification, registration or trust-marked status of any DVSP must not be misrepresented.
Our FAQs have been updated on these points and have more information on the changes from 1 October.
Earned settlement on the horizon
As employers and individuals will know, earlier this year the government consulted on its proposals for earned settlement. These proposals could be very significant for employers and migrants in the UK. The core proposal is to make it harder for people to qualify for settlement (indefinite leave to remain) and the qualifying period could be doubled to 10 years or even longer in some cases. The changes could have retrospective effect meaning migrants already in the UK could be affected. Our FAQs on the earned settlement proposals have more details.
The government said any new earned settlement rules would be released this autumn so we expect an announcement in the next few weeks.
As mentioned in our FAQs, in advance of any earned settlement announcement in the near future employers could support their staff in the following ways:
- Encourage your sponsored workers and other visa holders to apply for settlement as soon as possible if they are eligible.
- If you have anyone who may qualify for settlement on the basis of 10 years’ lawful residence in the UK – known as a long residence application – they should also apply as soon as possible. There are indications the long residence route may be abolished.
As soon as any announcement is made on earned settlement we will update you.
If you have any queries in relation to the above changes or any other immigration matter, please contact a member of the immigration team.
