The Home Office has published a consultation on a draft Code of Practice addressing how employers can avoid unlawful discrimination while preventing illegal working. The draft indicates a planned expansion of right to work (RTW) check obligations to take effect from 1 October 2026.
For organisations responsible for RTW compliance, the proposed changes represent a material shift in both scope and operational requirements, and early preparation will be important.
Why are right to work checks changing?
On 15 April 2026, the Home Office launched a consultation on a revised Code of Practice. The updated code is intended to:
- Reflect developments in digital immigration status (including eVisas)
- Expand the scope of the illegal working regime to cover a wider range of working arrangements
- Strengthen safeguards against unlawful discrimination in recruitment and onboarding processes
The draft Code is expected to apply to:
- All employment and working arrangements commencing on or after 1 October 2026; and
- Any follow-up RTW checks carried out on or after that date to maintain a statutory excuse
Although the implementation date is not yet finalised, the draft indicates a clear policy direction towards a broader and more technology-driven compliance framework.
Key proposed changes in the draft Code of Practice
The draft introduces several substantive changes, largely reflecting the broader scope of the illegal working regime:
1. Expanded definition of “employer”
This now includes those engaging individuals:
- Under a contract of employment or apprenticeship
- Under a worker’s contract
- As individual sub-contractors
- Via online matching or platform-based services
2. New and revised definitions
These revisions update and clarify key concepts used in the right to work framework.
- The definition of worker is broadened to cover any individual engaged under the expanded concept of an employer, ensuring wider coverage of working relationships.
- Right to work is explained more clearly as permission to work that depends on a person holding a qualifying immigration status.
- Right to work checks are also defined more comprehensively, confirming that employers can meet their obligations through manual document checks, Home Office online checks, or checks carried out using a certified Digital Verification Service (DVS).
- The term eVisa is reframed to emphasise that it is an online record setting out a person’s immigration status and any attached conditions, rather than a physical document.
- Permission to stay is clarified as immigration permission that is granted for a limited period of time, reinforcing that it is not permanent and is subject to expiry and conditions.
3. Practical clarifications for employers
These clarifications are intended to guide employers on how to apply right to work requirements fairly and practically in day‑to‑day recruitment. They recognise that technical problems can sometimes prevent a worker from generating a valid Home Office share code and make clear that this should be anticipated and handled appropriately.
Employers are expected to have robust equality policies in place and to apply them in practice, ensuring that all applicants are treated consistently throughout the recruitment process and when carrying out right to work checks.
The guidance also stresses that, except where an individual holds an eVisa and a digital check is mandatory, employers must not insist on using digital checks and should allow alternative permitted methods.
Finally, where the circumstances require it, employers must be willing to use the Employer Checking Service and should not refuse to do so, as this forms part of their legal compliance obligations.
4. Updated discrimination guidance
A central theme of the draft Code is the prevention of unlawful discrimination. Employers are expected to:
- Apply RTW checks to all individuals in a consistent manner, regardless of nationality or perceived immigration status
- Avoid making assumptions about a person’s right to work
- Provide all individuals with a reasonable opportunity to demonstrate their status
The draft reinforces that selective checking or additional scrutiny based on nationality or ethnicity is likely to constitute direct discrimination.
Employers are expected to have robust equality policies in place and to apply them in practice, ensuring that all applicants are treated consistently throughout the recruitment process and when carrying out right to work checks.
Implications for employers
The proposed changes will significantly increase the number and type of working relationships subject to RTW checks. In practice, this is likely to:
- Increase the volume of checks required across organisations
- Bring contractors and gig economy workers more clearly within scope
- Require closer integration between HR, procurement, and compliance functions
- Accelerate the shift towards and support the use of digital verification systems (without mandating them)
- Allow reasonable opportunity for all workers to demonstrate their RTW
At the same time, the strengthened focus on discrimination means employers must balance compliance with careful, consistent, and fair processes.
Preparing for October 2026
In light of the draft Code, employers should begin reviewing their current arrangements, with a focus on:
- Identifying all categories of individuals engaged by the business who may fall within scope
- Ensuring RTW processes are applied consistently across all roles and engagement types
- Reviewing policies to ensure alignment with discrimination law principles
- Assessing readiness for increased use of digital status checks and verification tools
- Training staff involved in recruitment and onboarding on the revised requirements
Consultation timeline
The consultation is open until 23:59 BST on 29 April 2026. Following this, the Home Office is expected to review responses and publish a finalised Code of Practice ahead of implementation.
How can we help
Clarkslegal’s Business Immigration team can support with:
- Auditing your current RTW processes
- Advising on discrimination risk and policy updates
- Reviewing contractual protections
- Preparing your business for the expanded compliance regime
If you would like tailored advice on how these changes affect your organisation, please contact us.
