The Home Office has issued a consultation on a draft Code of practice for employers on avoiding unlawful discrimination while preventing illegal working. The draft Code is not materially different from the current version (last updated in 2022) except in relation to one key area (which we expand on below). In our view, many employers already have a good grasp of the Code’s principal aim of avoiding unlawful discrimination against candidates and employees when carrying out right to work checks.

The draft Code includes a new definition of “employer”, which is no great surprise because it reflects the relevant provisions under section 48 of the Border, Security, Asylum and Immigration Act 2025. These were introduced to extend liability for illegal working and the need for checks beyond employees in the traditional sense but have not yet been implemented, presumably because a separate consultation on the changes which closed in December 2025 has still to be concluded by the Home Office. We discussed our concerns regarding the consultation and the changes in our 2025 article here.

Nonetheless, the new draft Code now states that:

“’Employer’ means 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, and
  • [through*] an online matching service providing the details of an individual who is a service provider to potential clients or customers”

[*there appears to be a missing word here so we have inserted our best guess].

What is surprising is that buried within the text, the Home Office has quietly announced that the Code (including that new definition of employer) will apply “to all employment commencing on or after 1 October 2026. It also applies where a repeat check on an existing worker is required to be carried out on or after 1 October 2026 to retain a statutory excuse”.  This means that section 48 of the 2025 Act will likely take effect at the same time, although this has not formally been announced by the Home Office. In other words, in addition to carrying out right to work checks on employees, businesses ‘employing’ workers, individual sub-contractors, or individual service providers through an online matching service etc. should prepare to have to carry out checks from 1 October on this wider group, or risk civil penalties of up to £60,000 per person in the event that any of them are found to be working in the UK without permission. 

Why the Home Office has chosen to bury this important date in a consultation document most businesses won’t get a chance to read is unclear. Of greater concern is that the Home Office has yet to publish any guidance at all on how businesses are expected to navigate the new definition of employer, not to mention checking obligations covering a much broader range of working arrangements. For example, it remains unclear whether businesses will be required to carry out checks on genuinely self-employed individuals or agency staff with whom the business has no contractual relationship.  

If the new rules apply from 1 October, businesses with a material contingent workforce need plenty of advance notice not only to determine who falls within scope for checks but also to implement adequate training, systems and procedures so that the checks can be carried out. For employers to be able to do this effectively, as a minimum, the Home Office needs to clearly set out who is in scope and liable, with multiple worked examples.

Businesses that rely on a material number of contingent workers are therefore advised to carry out a full internal audit, firstly relating to the nature of their workforce (employee, worker, individual sub-contractor, gig economy worker, genuinely self-employed etc.) and then in respect of their ability to carry out checks in relation to that wider group. In addition, it will be a wise precaution for businesses who are end-users of agency staff and similar workers to include in their staffing agency agreements an express term that the agency or other relevant 3rd party will carry out right to work checks on everyone it supplies and that it will provide the end user with evidence of that on request.

If you need support or have any questions relating to UK business immigration matters, please contact your usual Squire Patton Boggs business immigration team member or Annabel Mace, partner and Head of UK Immigration