Right to work consultation launched as illegal working visits and arrests soar

How does the Border Bill change right to work checks?

The bill currently in the House of Lords extends the scope of who should conduct right to work checks to prevent illegal working and the associated hefty sanctions for illegal working. The government says this will provide parity and a level playing field in respect of business’ responsibility to prevent illegal working.

Amendment Gov NC5 to the Border Bill will change the heading “Employment” in the Immigration, Asylum and Nationality Act 2006 to “Employment and other working arrangements”. It defines the “other working arrangements” which would also involve liability for illegal working.

Currently, right to work checks are advised for employees working under standard employment contracts* in order to provide a statutory excuse for the employer against costly civil penalties in the event that the worker does not have work authorisation. The legislation in its current form broadens this requirement to include:

• individuals engaged under contracts for services (as ‘workers’ and not in relation to a profession or business undertaking);
• individual sub-contractors engaged to provide work or services for a third-party by a person/organisation contracted by the third-party;
• and individuals sourced through online matching platforms/services.

In all the above cases, the right to work check would be the responsibility of the person/organisation engaging the individual unless there is an online matching service, in which case it will be responsible, rather than an end user.

The associated civil and criminal sanctions for non-compliance will be made applicable in these circumstances.

*Please note that sponsor licence holders that are sponsoring self-employed workers are required to carry out right to work checks on these workers (and retain evidence that they have done so) as part of their sponsor duties.

Why is the government consulting on extending the right to work scheme?

The six-week consultation on the above right to work changes will seek views and information on existing recruitment processes as well as how both businesses and their supply chains use different working arrangements.

It will feed into the evaluation of the impact of changes to illegal working policies and inform the preparation of guidance and the statutory code of practice that supports the right to work scheme, clarifying when these checks need to take place and how to conduct them.

You can find more details on the consultation here.

What would expanding right to work liability mean for businesses?

Those who engage people (let’s call them for the purpose of this explanation ’employers’ for simplicity, even though there may not be an employment relationship) could become liable for an illegal working civil penalty of up to £60,000 per illegal worker along with potential criminal convictions and reputational damage, even where there is no employment relationship between the business and the worker.

A Home Office press release trailing this expansion of right to work duties warned: “where businesses fail to carry out these checks, they will face hefty penalties already in place for those hiring illegal workers in traditional roles, including fines of up to £60,000 per worker, business closures, director disqualifications and potential prison sentences of up to five years.”

The announcement was accompanied by statements from Deliveroo, Just Eat and Uber Eats insisting that they voluntarily carry out such checks. Setting up correct right to work practices and maintaining them may be more onerous for smaller companies with high turnover of contractors though the scheme is easy to implement when you know what you are doing. If unsure of your processes, always seek professional advice.

How to prepare for right to work changes and when they may happen

At time of writing, the Border Bill may still be amended as it is still with the House of Lords.

We understand that following the consultation announced today, the new requirements are expected to take effect no later than 2026–27. An impact assessment for the proposed amendment has already been published. It is unlikely that this aspect of the legislation would be changed.

‘Employers’ are advised to proactively assess and adjust their current right to work check policies to ensure compliance with the forthcoming regulations.

‘Employers’ may need to:

• update onboarding procedures: implement standardised right to work checks for all workers / contractors, regardless of contract type to ensure compliance;
• leverage technology: utilise digital verification tools, such as the Home Office’s online right to work checking service or approved providers of Identity Document Validation Technology (IDVT), to efficiently help facilitate compliance; and
• train HR personnel: ensure that hiring managers and HR teams are well-versed in the new requirements and procedures.

For detailed guidance and support on adapting to these changes, please do not hesitate to contact us on +44 (0) 207 033 9527 or enquiries@vanessaganguin.com or via the form below, as it is always prudent to plan ahead for such changes, especially with compliance enforcement on the rise.

Are right to work checks compulsory?

No. But they do protect you from very hefty civil penalties for non-compliance (up to £60,000 per illegal worker). However, the Prime Minister’s recent announcement of a new digital ID rollout suggests that they are set to overhaul right to work checks (again), making the scheme compulsory.

How would Digital ID change right to work checks?

Prime Minister Sir Keir Starmer has announced the deployment of a “BritCard” Digital ID which will be mandatory for right to work checks by the end of this parliament (no later than January 2030). There are few details at this stage, but the government says the overhaul is to discourage illegal working and that the new digital ID would be held on people’s phones, “just as millions already use the NHS App or contactless mobile payments” with provisions to ensure those who have difficulties accessing such technology are not discriminated against.

There will be no requirement for individuals to carry their ID or be asked to produce it – it would be mandatory as a means of proving your right to work.

“The new digital ID will be the authoritative proof “who someone is and their residency status in this country. It will therefore include name, date of birth, information on nationality or residency status, and a photo – as the basis for biometric security – just like an eVisa or Passport”. (Which may beg the question why is this necessary less than a year since the new eVisa system replaced documents with a digital share code for millions of immigrants to evidence their status in right-to-work checks.)