From 1 October 2026, the Border Security, Asylum and Immigration Act 2025 is changing employer responsibilities in relation to illegal working.
The key changes will:
- Apply the illegal working regime to a wider group of workers
- Spread responsibility for illegal working between different employers involved in delivering services to clients
- Require employers to use only registered digital verification services to assist with right to work checks
In addition, other changes, that are not discussed in this article, will bring work done for Online Matching services (Deliveroo, Uber and similar) within scope of illegal working.
Background
Employers can be required to pay a civil penalty of up to £60,000 for each person they employ who does not have a right to work (RTW) in the UK.
If an employer conducts a valid RTW check, they can avoid such liability by way of a Statutory Excuse.
The checks must be conducted before employment commences, and repeat checks will be required if the RTW is due to expire.
From 1 October 2026 employers will need to:
- Conduct RTW checks on a wider group of workers
- Amend commercial contracts by adding contractual RTW controls and taking other measures to manage sub-contracts relating to the supply of services
- Ensure that they use only registered digital verification service providers (DVSPs)
Workers within scope of illegal working
At present the illegal working liability only arises in relation to those employed under a contract of employment.
Employers will going forward need to conduct RTW checks on a wider group of workers. The change will extend the civil penalty to “workers” who are self-employed where they are delivering work personally and not as part of a business.
This will include individuals offering services as consultants, casual workers and contractors. If the worker in question genuinely provides their services to the employer as part of their own business, they will be out of scope. If there is any doubt about this, it is best for the employer to err on the side of caution and treat the worker as being within scope.
Service suppliers – extended liability
At present an employer can only be held liable for illegally employing a person who they directly employ. The changes will mean that an employer who is involved in the supply of services to a client or customer can be held liable for any illegal work done for any sub-contractor involved in the supply of those services beneath them in the chain of supply. This will apply regardless of the number of sub-contractors. It will also apply to individual contractors who provide a substitute worker. The end-user or ultimate client is not in scope.
Where a person is working illegally in the delivery of the services the UK Visas and Immigration (UKVI) might ask anyone higher up in the chain of supply to pay the civil penalty. They will default to asking the immediate employer but where they cannot be held accountable the UKVI will move up the chain and find another employer to hold to account (Extended Liability).
Extended liability and statutory excuse
An employer in the supply chain can establish a statutory excuse to Extended Liability by imposing prescribed contractual terms onto their immediate suppliers. In broad terms these terms must ensure that the supplier:
- Conducts RTW checks on any individual that performs the relevant work or service, allows for control and audit of these checks and cooperates with the UKVI
- Accepts controls which limit and control the substitution of one individual by another
- Has proportionate systems to ensure that the identity of anyone delivering work is the same as the person who’s RTW has been checked.
The Employers’ Guide to Right to Work Checks provides extra details of the contractual terms that are expected and the related systems that employers may decide to put in place to manage these contractual terms. Unfortunately, the obligations are not likely to be easy to implement.
ID verification – Facial recognition
Currently employers can use companies that offer digital verification services to verify UK and Irish passports. When the changes come into force it will be necessary to ensure that such checks are conducted only by Digital Verification Service Provider’s (DVSP) who are registered on the Office for Digital Identities Attributes register. If the provider is not registered, then the checks will not allow the employer to establish a Statutory Excuse.
Support
Bower Bailey can assist suppliers by drafting contracts to address the risk of Extended Liability and can provide additional guidance or training for employers on any other RTW issues.
