With the expansion of Right to Work requirements and record levels of Home Office enforcement, immigration compliance must be a priority for employers. This FAQ has been designed to answer common questions, help organisations navigate the evolving rules and ensure their Right to Work processes remain compliant and fit for purpose.
Jump to:
- Officeholders
- Agents and intermediaries
- End-user purchasing a service or outcome
- Agency workers and temps
- Digital Identity Service Providers (DCSP) and imposter checks
General
1. When will the provisions take effect?
In relation to the expanded definition of employment under the Scheme, such as under a worker’s contract or as an individual subcontractor, a civil penalty may be imposed where the employment began on or after 1 October 2026.
In relation to the extended liability provisions, such as where there is a contractual chain or substitution agreement, a civil penalty may be imposed where the contractual arrangements were entered into on or after 1 October 2026.
Where there was a contractual arrangement in place before 1 October 2026, it seems that the extended liability provisions do not apply, even a new assignment arises under that contract. If the organisation is uncertain if it falls within extended liability, they may wish to carry out a RtW check on all new engagements from 1 October 2026.
2. If there are intermittent assignments between engagements under the same contract for services, does the RtW check need to be repeated for each new assignment?
If an individual is engaged under a contract and carries out intermittent assignments, a RtW check only needs to be carried out before the work starts, and then any follow up check made prior to the visa expiry. The RtW check does not expire because there are gaps between assignments, if they are engaged by the same organisation. However, it is not clear what the position is if the individual changes employer in between assignments, and if their employment is terminated and later reinstated. We await clarification on this from the Home Office.
3. What new obligations apply for sponsor licence holders?
The new guidance does not impact an existing sponsor duty for sponsor licence holders to check the RtW for any sponsored workers, even if they are self-employed and therefore out of scope of the expanded RtW Scheme.
If the sponsored worker is in scope of the expanded RtW Scheme, from 1 October 2026 the sponsor must meet the requirements of the new guidance to establish a statutory excuse.
Self-employment
4. Do employers need to conduct right to work checks on short-term freelancers or contractors, whether sole traders or individuals operating through their own companies, who are not treated as employees?
Where the individual is genuinely self‑employed and supplies services as an independent business, they should remain out of scope of the RtW Scheme. The guidance says:
This guidance 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. This includes arrangements where services are provided directly to members of the public or under typical business to business contracts for the supply of services, where the arrangement is for the purchase of a service rather than the employment of an individual to carry out work or services.
The guidance lists factors to consider when determining whether an arrangement is in scope, including whether:
- the individual is personally carrying out the work;
- substitution is permitted, expected or controlled; and
- the arrangement is primarily for the provision of individuals to undertake work or services, or the organisation is procuring the delivery of a defined service or outcome from another independent business.
The guidance appears consistent with the approach to determining employment status under UK employment law. Where the facts indicate employee or worker status, RtW checks will be required.
If there is a risk that the individual could be treated as a worker or employee, or that the Home Office could classify them as such, the organisation may wish, as a precaution, to carry out a RtW check and/or include contractual wording confirming that the individual warrants they have the RtW and permits such checks. Employment law advice may also be appropriate to ensure that the arrangements reflect genuine self-employment in practice.
5. If an organisation engages a self-employed consultant, does the arrangement remain out of scope if a substitute performs the services?
Where someone is genuinely self-employed, they are out of scope of the Scheme. The guidance seems to indicate that extended liability and the substitution controls only apply where the individual initially engaged has worker status, not where they are genuinely self-employed. The guidance could be interpreted as contradictory on this point, and we are awaiting clarification from the Home Office that this interpretation is correct.
6. On self-employment – are you saying that we need RTW checks on a substitute but not necessarily on the original self employed contractor?
Please see the answer to question 5 above.
7. Can the CEST tool still be used as the indicator to HMRC and to us as to whether an individual subcontractor needs right to work checks completed? If the result, is ‘unable to make a determination’ should we still be conducting RtW checks?
CEST is an HMRC tool for assessing tax status and has not been designed to determine RtW obligations. Although it may help to inform a decision on whether an individual is self-employed or a worker, a full, separate RtW assessment is required in light of the RtW guidance, regardless of the CEST tool outcome. 8. Is it worth us adding in a clause to contractor agreements which states that any substitutes must have the RtW?
If the worker’s contract or individual sub-contractor agreement permits substitution (please see question 5 above if the individual is self-employed), then it will be necessary to include the substitution control requirements in full in the contract. This includes that the substitute must have the RtW, that RtW checks must be completed before the substitute starts work, and to permit suspension or termination of the contract in the event of illegal working.
9. Hiring an expert usually requires the consultant to perform the work themselves. Substitution must have prior approval. Due to the consultant’s expertise, the contract could be terminated if an alternative expert cannot be found. What precaution should the business apply where substitution is unlikely to be an option? Any special contractual provisions to mitigate against in respect of the regulations?
It will be necessary to assess whether the arrangement points to genuine self-employment or to worker status to ascertain whether a RtW check is needed.
As substitution is permitted, unless the individual is genuinely self-employed (but see question 5), it will be necessary to meet the substitution controls – see answers to questions 5, 6 and 8 above. However, we will seek clarification on this scenario from the Home Office.
10. Who will be responsible for RtW checks for self-employed individuals. You said that they remain out of scope, but do we need to include any wording in their contracts about RtW checks?
Genuinely self‑employed engagements remain out of scope, so RtW checks are not required.
However, if there is a risk that the individual could be treated as a worker or employee, or that the Home Office could classify them as such, the organisation may wish, as a precaution, to carry out a RtW check and/or include contractual wording confirming that the individual warrants they have the RtW and permits such checks. This contractual wording should be clear that this is required for compliance purposes and does not imply that the individual is a worker or an employee. Employment law advice may also be appropriate to ensure that the arrangements reflect genuine self-employment in practice.
If an individual has set up a Personal Services Company (PSC), it will still be necessary to carry out a full check as to whether they are genuinely self-employed and operating through a PSC will not by itself place the individual out of scope. See questions 5,6, 8 and 9 above if there is a substitution clause.
Officeholders
11. Do the checks also apply to Non-Executive Directors and Trustees?
RtW checks should not be required where a Non-Executive Director or Trustee is appointed solely as an office holder, without an employment contract or a contract requiring them personally to perform work or services. However, checks may be required if the individual enters into a separate contract on or after 1 October 2026 to provide services personally to the organisation.
Agents and intermediaries
- 12. Where a theatre company contracts directly with a performer, but the performer is represented by an agent, which party is responsible for the RtW check: the theatre company or the agent?
If the performer has worker status, and contracts directly with the theatre company, the theatre company is responsible for RtW checks on contracts entered into on or after 1 October 2026, even where an agent facilitated the engagement. If the theatre instead contracts with a production company to provide the performance and supply the performers, responsibility would ordinarily rest with the employing or supplying business.
- 13. An HR consultancy who employs HR consultants as employees. The consultants go to work at various clients. Do the clients that they work with need to carry out right to work checks on the consultants, or does this liability remain with the HR consultancy (the employer).
As the HR consultants are employed by the HR consultancy, it remains responsible for conducting RtW checks on its employees.
The client is not in scope, as long as it does not have a direct contract with the individual. The contracts and practice must reflect that the consultancy supplies services and remains the employer.
End‑user purchasing a service or outcome
- 14. If we are the end user of (say) building services, is it right that we will NOT be liable provided we contract with an actual business?
If the organisation purchases building services from a business and does not personally engage the individual workers, the engagement should be out of scope of the extended liability provisions, and responsibility for the RtW checks sits with the employing or supplying business. It may be prudent to include in the contract that the supplier must comply with the RtW requirements.
Agency workers and temps
15. What about temps? Employment agency is responsible for RtW checks but should the organisation where the temp is carrying out the work also check RtW?
Where the temp is employed by the agency, the employer remains responsible for RtW checks. The organisation where the temp is carrying out the work does not need to check the RtW, but it should ensure the contract makes clear that the agency is the employer and that they will comply with the RtW requirements. If the organisation engages the temp directly under a contract personally to perform work entered into on or after 1 October 2026, they would then need to complete RtW checks.
Digital Identity Service Providers (DVSP) and imposter checks
- 16. Can DVSP providers do the imposter check on behalf of the organisation?
From 1 October 2026, a registered RtW DVSP may complete the imposter check on behalf of the organisation. The RtW DVSP will verify that the photo on the identity document matches the individual being checked. Employers must keep a secure record of this verification, together with a copy of the document reviewed.
However, the employer remains responsible for ensuring that all the statutory requirements are met and must retain the required evidence on file.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice on which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please contact the Bates Wells team if you require further information.