The Government has published a draft Code of Practice on avoiding unlawful discrimination while preventing illegal working. It is the first detailed indication of how the Government intends to amend the right to work scheme in practice, and the first time we have been given a clear indication of when the new approach is expected to take effect, namely from 1 October 2026.
This matters because the underlying legal framework is already in place. Section 48 of the Border Security, Asylum and Immigration Act 2025 proposes to expand the UK's illegal working regime, broadening the definition of "employment" to include non-employee workers, self-employed contractors, and online platform service providers (gig economy workers). This will mean that right to work checks will no longer be limited to employees and will extend to these arms-length working arrangements.
This section is not yet in force. The draft Code is the clearest signal yet of the Government’s intended approach.
Get in touch
From legislation to operation: joining the dots
The prevention of illegal working is no longer intended to sit neatly within traditional employment relationships. Instead, it is being aligned with the realities of the modern UK labour market, including the gig economy, subcontracting models and platform based work.
The draft Code shows how those changes could be delivered through the right to work scheme. One of the most important developments in the draft Code is its approach to definitions. It defines ‘Employer’ as anyone who employs an individual as:
- Under a contract of employment (a contract of service or apprenticeship)
- Under a worker’s contract
- As an individual sub-contractor, or
- An online matching service providing the details of an individual who is a service provider to potential clients or customers
The clear implication is that right to work checks, and civil penalties are no longer intended to be confined to employees alone.
Why has the law changed?
The right to work regime has always evolved in response to the need to confront illegal working and protect access to lawful employment. However, the core framework, including the definition of who counts as an “employee” for immigration purposes, was developed at a time when the labour market was far more traditional, with work typically performed under clear contracts of employment. Over time, the law has been slow to keep pace with the growth of modern labour arrangements, including the rise of zero hour contracts and working arrangements with organisations like Uber and Deliveroo. This has created a gap where individuals carrying out work in the UK could fall outside the existing right to work scheme, allowing illegal working to flourish in certain sectors with limited oversight. The expansion of the regime reflects a deliberate attempt to modernise the law, close those gaps, and ensure that immigration controls apply consistently to those who benefit from labour, regardless of how that labour is structured or labelled.
What this means for HR and People professionals
One of the first challenges for HR will be identifying which categories of individuals may fall within scope once the expanded regime is implemented. HR teams should not assume that responsibility for right to work checks will always sit neatly with a third party. Additionally, third party checks do not always help you establish the all-important statutory excuse. Clear internal ownership of right to work compliance, supported by strong cross functional governance, will be critical.
As the scope of right to work checks expands, so too does the risk of errors, particularly where responsibility is spread across multiple teams or locations. Research commissioned by the Home Office has previously shown that misunderstandings around record keeping, repeat checks and reliance on third parties are common, especially among organisations using agency labour or flexible working arrangements.
HR teams will play a key role in ensuring that:
• those responsible for checks are appropriately trained
• managers understand when HR involvement is required; and
• internal policies are updated to reflect the expanded regime
For many HR professionals, there will be a renewed focus on outsourced recruitment and vetting processes.
HR teams should therefore review existing arrangements with recruitment agencies, labour providers and digital platforms to ensure that responsibilities are clearly understood, documented and monitored, and that reliance on third party checks does not inadvertently undermine the statutory excuse.
Although the expanded regime is not yet in force, the draft Code provides HR teams with an early opportunity to prepare. For many organisations, this period before implementation will be critical in stress testing existing processes, clarifying roles and responsibilities, and embedding compliance into wider workforce strategy.
How we can help
If you would like support reviewing your current approach, training HR or recruitment teams, or understanding how these developments may affect your workforce, our Business Immigration team would be happy to assist.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
Related expertise
Related news & articles
Contact us today
Whatever your legal needs, our wide ranging expertise is here to support you and your business, so let’s start your legal journey today and get you in touch with the right lawyer to get you started.
Get in touch
For general enquiries, please complete this form and we will direct your message to the most appropriate person.