Changes to Right to Work checks from 1st October 2026
On 1 October 2026, the Home Office issued the Employer’s guide to right to work checks, which you can see here (it’s an 83 page long, complicated, document!).
The finalised version of the guidance (as there have been several versions published since July 2026) indicates that the Home Office is continuing to engage with queries relating to the expanded right to work scheme, and signals that further clarifications may follow in the short to medium term. Employers can sign up on GOV.UK to receive updates on any changes to the Guide.
There is also an updated Code of Practice: https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers
This is complicated – but it is something you need to know about!
From 1st October 2026 the legal requirement for Employers to carry out Right to Work checks (RTW) is expanded.
The new law (The Border Security, Asylum and Immigration Act 2025 has been changed to amend the Immigration, Asylum and Nationality Act (IANA) 2006):
- extends the scope of who qualifies as an ‘employer’ and ‘worker’ for preventing illegal working, to a wider range of working arrangements,
- Extends the sanctions for non-compliance beyond traditional employment relationships,
- introduces the concept of ‘extended liability’ which means that liability for civil penalties for illegal working may extend beyond the organisation with the direct contractual relationship with the worker (so-called ‘extended liability’).
The new guidance sets out steps that employers can take to establish a ‘statutory excuse’, which means they won’t be liable for a civil penalty, if the member of staff they are employing is found to be working illegally.
“A ‘statutory excuse’ is established when the employer carries out prescribed right to work checks before the worker commences employment, and where applicable, retains that ‘excuse’ by carrying out required follow-up checks for workers with a time-limited right to work.
Prior to this date, Employers were only legally required to make RTW for PAYE employees (employed on contracts of employment). However, many Employers already make these checks on all their staff and freelancers, as it’s good practice to do so.
The First change:
All ‘workers’ will need to be RTW checked by their Employer from 1st October 2026 (not just employees) – so this includes all casual PAYE staff (including staff on zero-hours contracts) – before starting work. It also includes agency workers, but the employment agency would be responsible for conducting the checks.
Self-employed contractors (Sched D) and sole-traders will now need to be checked, by the Employer, before starting work.
(Some freelance platforms used by productions to source crew and talent, will be regarded as ‘employers’ and will therefore have to do RTW checks if they actually supply the workers).
The situation regarding Loan Out Personal Service Companies is more complicated (see 2. below)
To comply with these new requirements, Employers are recommended to:
- Make sure all your existing PAYE and freelance staff have had RTW checks done and documented.
The new measures aren’t meant to be retrospective, so employment arrangements which started before 1 October 2026 aren’t covered.
If a worker carries out irregular work for you, a fresh right to work check isn’t required before each new assignment, unless they have restrictions on their permission to work that are near to expiry.
The new rules do not apply where work or services are not carried out in the UK.
In order to establish a ‘statutory excuse’ under this section employers must do one of the following checks before the worker starts work:
- Conduct a manual document check under Home Office Guidance – obtain an original document from List A or List B of Annex A List A (https://www.gov.uk/government/publications/right-to-work-checklist/employers-right-to-work-checklist-accessible-version)
- Then check the validity of the document(s) to ensure they are genuine and they belong to the worker, in the presence of the worker. Check if there are expiry dates for permission to be in the UK and if there are any work restrictions.
- Take a clear copy (or digital copy) of each checked document (all the relevant pages that hold information) and record the date on which the check was conducted on the copy (by using the words “the date on which this right to work check was made was [insert date]”).
- The copies of the documents must be kept securely for the duration of the workers employment and for two years afterwards.
- OR, Conduct a Home Office online right to work check using a share code (where the worker has an eVisa). Same link as above.
- OR, Carry out a permitted digital identify check through an approved provider (if you wish to; it is not mandatory for employers to do this). Same link as above.
- There is a Right to Work Checklist which you can see here.
The Second change:
The concept of ‘Extended Liability’ is introduced. This means that where a business subcontracts work to another business they may find themselves the “Employer” of the individuals who actually perform the work/services. This could affect loan-out Contractors/PSC’s (although this measure is intended to capture more complex supply chains).
The Guidance (from page 42 onwards) says that “Extended Liability applies where:
- a person is under a contract to provide work or services to your business and enters into a contract with another employer who employs worker(s) to carry out all or part of the work or services required to fulfil that contract.
- an employer employs an individual to provide work or services, and the contract permits that individual to substitute their work or services to be carried out by another individual in their place.
It does not apply to every business that purchases work or services from another business nor does it apply to a client, customer or end-user who is purchasing work or services for their own internal operations.”
Obviously, that’s as clear as mud! But the Guidance goes on to say that “it does not apply to individuals who are operating an independent business either in their own name or through their own company and who contract directly with clients or customers to provide goods or services.
The Guidance gives an example of a graphic designer who is engaged through their own PSC to work on a specific project for the employer. The graphic designer is genuinely operating an independent business (so outside of IR35) and contracts directly with clients, and invoices them directly in the company need. Employers would not need to do a RTW on these types of Contractors.
Honestly? This is very complicated and I’ve not covered all the information in the Guidance as it’s too unclear – it’s very hard to determine how this affects your loan out/PSC staff!
My suggestion is that if you currently do RTW checks on Loan Out contractors already, then carry on doing it! If you don’t already do this, you will need to take legal advice to assess each working relationship and if these changes apply to it.
One thing is clear and that is: where the Employer engages an individual on a loan-out contract and that individual is ‘substituted’ for another individual (under the terms of their loan-out contract), you must check the substitutes RTW before they start work with you.
This will also affect your Supplier contracts, but I can’t give you advice about that.
There is more information in this article by Lawyers Lewis Silkn LLP (see specifically, page 4 about PSC’s) – a quote from the article says “for now, businesses engaging PSC freelancers as part of a supply chain, delivering 3rd party client work should be aware that the extended liability provisions may apply…… This is an area where we expect further clarity as the regime beds in….”. There is another article by them about the Creative Industries which might be worth a read here.
I can see that PACT issued guidance on this on 10th October 2026 (but I can’t access it) – https://www.pact.co.uk/resource/guidance-on-right-to-work-changes.html
I will continue to try to make sense of this, so I will update this guidance over time!