Right to work extension scheme guidance

Legislation

Section 15A of the Immigration, Asylum and Nationality Act 2006 (as amended) will extend civil liability where a company is contracted to provide work or services to a third party as part of its business, and then in turn sub-contracts all or part of that work or services to another company, which then provides the workers to carry out the work or services. 

The secondary legislation for this was laid in June and the measures come into force on 1 October 2026.

What does this mean?

As a general principle, responsibility for carrying out a right to work check rests with the employer that holds the direct contractual relationship with the individual worker.

In broader terms, this can apply where a business is outsourcing delivery of its core service through one or more tiers of contractors, including outsourced service providers. In such circumstances, the principal or original contracting company will be expected to ensure that prescribed requirements are met across the relevant contractual chain in order to establish a statutory excuse (defence) in the event illegal working is identified. This involves ensuring there are written terms within a contract, including who is responsible for completing right to work checks.

The application of these provisions is not limited to a single tier of contracting (for example, the first contract in a chain only), and whether liability for illegal working applies will be considered on a case-by-case basis. This will include (but is not limited to) how the arrangements operate in practice.

How might this apply to employers in the NHS?

It is not anticipated that the legislation amendments will have significant impact on situations in the NHS as they are primarily aimed at the gig economy. However, employers should consider what arrangements are in place in the following circumstances:

• Agency workers - Where workers are supplied through an external recruitment or staffing (employment) agency to work within a business’s own operations, it remains the long-standing position that the agency, as the employer with the direct contractual relationship with the worker, is responsible for conducting the right to work check. Employers must ensure that any agencies or other external staffing and service providers they contract with have robust appointment processes which meet with the same high standards as those required if appointed directly by the organisation, including the undertaking of right to work checks.
• Contractors - In these situations, responsibility for right to work checks will ordinarily sit with the service provider that employs or engages the workers. Those service providers should also consider their compliance requirements where they are in scope of extended liability by virtue of sub-contracting the delivery of that contract to another company or service provider that uses its own workers to carry out the work or services. Please refer to Home Office guidance about contractual terms and conditions (written statements and substitution controls). 
• Sponsorship - As a sponsor licence holder, the NHS is already required to ensure that appropriate right to work checks are carried out for all sponsored workers to comply with their sponsor duties. This includes where the worker is not their direct employee (for example, if they’re self-employed).

What happens next?

Employers can be reassured that amendments to legislation shouldn't require them to repeat right to work checks on subcontractors, agency workers or other third-party staff. However, it's important to be aware of what's changing as it could affect where right to work responsibilities form part of contractual arrangements, when the new measures become active on 1 October 2026. 

Employers should review their recruitment and on-boarding processes, working closely with their procurement, contracting and HR colleagues so that everyone understands the new requirements. It may also be worth considering obtaining independent legal advice where necessary.

What are the key points to remember for right to work checks?

• The person or organisation that directly employs or engages the worker, or operates the relevant online matching service, is responsible for completing the right to work check.
• In specified contractual arrangements, liability for a civil penalty may extend beyond the direct employer or engager to another organisation in the contractual chain through which the work or services are being delivered. This does not transfer responsibility for carrying out the check from the direct employer or engager.
• The correct prescribed check must be completed before employment, work or services begin.
• The check must confirm that the person is permitted to do the work being offered, including any restrictions.
• The required evidence must be retained to establish a statutory excuse against liability for a civil penalty.

Contact 

For queries, please contact us, or the Home Office Right to Rent and Right to Work team.