Key takeaways
RTW checks expanding beyond traditional employment
Future regime covers workers, subcontractors, gig economy arrangements.
Updated Code emphasises non-discriminatory RTW checks
Checks required for all workers, regardless of nationality or background.
Multiple compliant RTW checking methods permitted
Employers must accommodate manual, digital, and online checks fairly.
The Home Office has launched a short consultation on the draft updated Code of Practice on avoiding unlawful discrimination when conducting right to work (RTW) checks.
It is unlawful for an employer to employ an individual who does not have a right to work in the UK. However, an employer will have a defence (a statutory excuse) if it can prove that it performed a ‘right to work check’ to establish that the individual had the right to work in the UK. There is a Code of Practice on the right to work scheme and a Code of Practice on avoiding discrimination whilst undertaking RTW checks.
RTW checks are currently only required in respect of workers who are employed under a contract of employment, service or apprenticeship. However, the prevention of illegal working regime will, in the future, be extended to other working arrangements including the hiring of ‘workers’, and other individuals hired in the gig economy whether via platforms or subcontracting arrangements (s48 of the Border Security, Asylum and Immigration Act 2025, which is not yet in force).
In preparation for this extension of the RTW Check regime coming into force, the Home Office has published a consultation on a draft updated Code of Practice on avoiding unlawful discrimination while preventing illegal working. If approved, the new Code of Practice will come into force on 1 October 2026, which is anticipated to coincide with the extended RTW Check regime being brought into force. It will apply to any new employment commencing, and any repeat checks on existing workers conducted, on or after 1 October 2026.
In summary, the draft Code:
defines an ‘employer’ as a person who employs an individual: 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
defines a ‘worker’ as an individual employed by an employer in any of those working arrangements
defines a ‘digital verification service (DVS)’ as a service that enables people to digitally prove who they are, information about themselves or their eligibility to do something
confirms the principle of non-discrimination. Employers should perform RTW checks on all workers (including British citizens) and not make assumptions about an individual’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK
confirms that there are three permitted types of right to work checks (a manual document-based check, the use of a DVS, or a Home Office online check) and that employers must not discriminate against any individual based upon the type of right to work check carried out. An individual may decide that they do not want to use a DVS and choose instead to demonstrate their right to work using a physical document. Some individuals with an eVisa are unable to use the Home Office online service. There may also be technical issues beyond the worker’s control, rendering digital checks impossible. Where DVS technology is used as part of recruitment and onboarding processes, the employer and the DVS provider must have systems in place to ensure this does not introduce or perpetuate discriminatory outcomes.
The consultation on the draft Code ends on 29 April 2026 at 23:59 BST.
If you need assistance with your business' right to work processes and compliance, including training, written guidance (including step-by-step checklists) or a mock right to work audit, please get in touch with our Immigration team.
