Right to work checks changed on 1 October: five mistakes employers should avoid

Right to work checks are often treated as a routine part of recruitment, with an applicant producing documentation, somebody copying it into a personnel file and the business moving on to the next stage of onboarding. The difficulty is that collecting documents is not necessarily the same as carrying out a legally compliant right to work check, and this distinction can have significant consequences where an employer has misunderstood or overlooked its responsibilities. Changes effective from 1 October 2026 have introduced revised statutory codes of practice and updated checking requirements, while the Right to Work Scheme now extends to certain arrangements beyond traditional contracts of employment, including specified worker, individual subcontractor and online matching service arrangements. Employers need to consider not only whether their checks are compliant, but whether recruitment practices are fair, consistent and understood by those responsible for administering them.

The consequences of getting these checks wrong can extend beyond civil penalties for illegal working. An inconsistent or poorly managed process can also give rise to discrimination claims, particularly where employers make assumptions about who may or may not have permission to work based on their name, nationality, accent or perceived immigration status. One of the more concerning problems is not necessarily an employer deliberately engaging somebody without permission, but an employer excluding somebody who is perfectly entitled to work because the recruitment process relies upon assumptions rather than proper verification. There are five particular mistakes businesses should avoid.

1. Assuming the rules only concern traditional employees

The October changes extend the Right to Work Scheme to certain arrangements involving workers, individual subcontractors and online matching services, which is particularly relevant to organisations using agency labour, platform-based arrangements and individuals providing services under particular contractual structures. Many businesses have become accustomed to treating right to work compliance as an HR function confined to individuals receiving conventional employment contracts, but that approach needs reconsideration. The application of the extended scheme depends upon the actual working arrangements and statutory requirements, rather than simply the label used by the parties, and it would be equally incorrect to assume that every commercial supplier relationship automatically creates an identical checking obligation. Businesses should review how individuals are engaged, which entity has the duty to carry out prescribed checks and whether existing procedures reflect the different arrangements in use.

2. Collecting documents without understanding them

A surprisingly common weakness in recruitment administration is the assumption that collecting a passport or immigration document completes the exercise, when employers must instead perform the prescribed check using an appropriate method, establish that the individual is permitted to undertake the work in question and retain the evidence required by the applicable guidance. Depending upon the individual's circumstances, this might involve an acceptable manual document check, the Home Office online checking service or an authorised digital verification service provider. Further checks may be necessary where permission to work is time-limited. A copied document in a personnel file does not automatically establish the statutory excuse against a civil penalty, particularly where nobody understood what needed to be verified.

This becomes especially problematic where onboarding is delegated to an office administrator, junior manager or recruitment employee who has received little meaningful training. In some sectors, collecting documents has become so routine that nobody questions whether the prescribed process is being followed, while in others compliance is treated as an inconvenience which can be overlooked when staff are urgently required. Neither position is defensible. An employer should be capable of explaining its checking process, identifying who is responsible and demonstrating that appropriate records have been retained, rather than simply producing a folder of documents in the hope that their existence will be sufficient.

3. Making assumptions about who has the right to work

Perhaps the most concerning mistake is selective checking, where employers subject certain candidates to additional scrutiny because of their name, ethnicity, nationality or accent while allowing others to proceed with comparatively little verification. An employer may assume that somebody with a British-sounding name is entitled to work, yet immediately question whether a candidate with a foreign-sounding surname requires sponsorship. Another may avoid interviewing a suitably qualified applicant altogether because their background creates an unfounded concern about immigration compliance. Such practices are dangerous, and the October 2026 discrimination code reinforces the importance of conducting checks consistently rather than making recruitment decisions based upon assumptions about an individual's circumstances.

Immigration compliance is not permission to discriminate. A person may have a perfectly lawful right to work even where their immigration circumstances are unfamiliar to the person conducting the checks. Permission may be time-limited, continuing while an application is pending or subject to verification through the Employer Checking Service, none of which justifies speculative conclusions about an applicant's eligibility. A properly managed recruitment process should apply appropriate checks consistently at the same stage, regardless of somebody's background, while ensuring those administering the process understand the permitted methods of verification. The objective is to establish whether the individual is entitled to undertake the proposed work, not to decide whether they appear sufficiently British to be employed.

4. Insisting on digital checks when another lawful route is available

Digital verification has become an increasingly important part of recruitment, particularly with the growing use of eVisas, the Home Office online service and registered digital verification service providers. Employers must nevertheless distinguish between different checking methods rather than imposing a single process upon every applicant. Some individuals are required to demonstrate their status through the Home Office online system, while others may be entitled to use an acceptable physical document or another prescribed route. Employers also need to account for applicants who experience technical difficulties accessing their immigration information. An incorrect share code or temporary inability to access an online account does not, by itself, establish that somebody lacks permission to work.

The appropriate response is to establish the individual's position using the prescribed procedure, including the Employer Checking Service where applicable, rather than treating an administrative or technical difficulty as grounds for an adverse recruitment decision. While digital systems can make onboarding more efficient, convenience must not override compliance or result in otherwise eligible candidates being disadvantaged. Businesses should ensure that those responsible for recruitment understand both when an online or digital check is required and when another lawful method is available.

5. Assuming outsourcing removes responsibility

Many businesses outsource recruitment, onboarding or document verification for legitimate commercial reasons, particularly where they recruit frequently or operate across multiple locations. The difficulty arises when an employer assumes that appointing an external provider removes the need to understand what checks are being undertaken or whether the process meets the relevant requirements. Employers should establish precisely what services their provider performs, which verification methods are used, whether the provider is authorised where necessary and what evidence is returned to the business. The extension of the scheme to certain non-employee arrangements makes the allocation of responsibilities particularly important, while recruitment agencies may also have separate obligations under equality law even when following a client's instructions.

Outsourcing an administrative function should never be confused with relinquishing oversight of compliance. Contracts and procedures should be reviewed to establish how responsibilities are allocated, what happens when a check cannot be completed and whether the employer receives sufficient information to understand the outcome. An assurance that somebody else has handled the process is of limited value if nobody within the organisation can demonstrate what was done or explain how a problem would be identified and addressed.

What should employers do about previous failures?

Discovering that right to work checks were never completed for several existing employees can be uncomfortable, particularly where the omission continued for years or resulted from an individual deliberately disregarding the established procedure. The worst responses would be to ignore the problem or attempt to manufacture records suggesting checks were completed when they were not. Employers should instead investigate how the failure occurred, review the circumstances of those concerned and undertake appropriate checks as promptly as possible. The investigation should consider whether the problem arose from inadequate training, defective onboarding procedures, poor supervision or a deliberate decision to overlook compliance requirements, with corrective action directed at the underlying cause as well as the immediate administrative deficiency.

Completing a check now does not retrospectively establish that a prescribed check was undertaken before employment began, and employers should acknowledge that distinction rather than attempting to conceal it. Equally, an administrative failure should not automatically result in an assumption that the affected employee lacks permission to work, particularly where their status can be verified through the appropriate channels. Each situation requires careful consideration, proper documentation and proportionate action, with specialist immigration or employment advice obtained where necessary before taking steps which might affect the individual's employment.

The October reforms provide an opportunity to examine recruitment and onboarding arrangements more generally, including who must be checked, which methods are appropriate, who is responsible for completing the process and how the results are recorded. Employers should also consider whether applicants are treated consistently and whether managers genuinely understand the risks of making assumptions about nationality or immigration status. An organisation which rigorously questions some candidates while allowing others to proceed without proper verification may expose itself to two different categories of legal risk, neither of which will be resolved by adopting a longer checklist.

Right to work compliance and fair recruitment should operate together, rather than being treated as competing priorities. Aubrey International assists employers with HR procedures, recruitment documentation, workplace compliance and employment risk management. Businesses concerned about their onboarding arrangements or the October changes are welcome to contact us for an initial discussion.

This article provides general information about UK employer obligations and does not constitute immigration or employment advice on individual circumstances.

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