The official implementation date for the roll out of the highly anticipated Section 48 of the Border Security, Asylum and Immigration Act 2025 (“Border Act”) has been set as the 1st of October 2026. We recently speculated whether the Home Office attempted a soft launch of the changes to right to work checks under the Border Act through updates to its sponsor guidance in March and April of this year. However, these updates caused widespread confusion, and the Home Office was prompted to revert the changes made – reinstating the importance of the date of implementation for section 48 of the Border Act.
In this article, Alex Christen and Jake Hayward consider the importance of this impending change to the law surrounding the expansion of the civil penalty regime, including the potential implications & considerations for businesses on implementation.
What does Section 48 change?
Section 48 of the Border Act will effectively extend the duty on all businesses (not just sponsors) to conduct right to work checks on wider groups than just employees, specifically:
- individuals engaged under a worker contract (i.e. a contract for services),
- individual sub-contractors, and
- those provided via an online matching service (i.e. gig economy workers).
Parts of the Border Act 2025 are already in force, save for section 48, which is aimed at further preventing illegal working in the UK. It does so by ensuring that a wider range of individuals have the requisite legal right to work in the country before companies can hire them or make use of their services.
Businesses who do not carry out checks on these wider groups face civil penalties of up to £60,000 per person if that person is working in the UK illegally. If the business is a sponsor, it faces compliance action up to and including licence revocation. There are wider sanctions, including disqualification of directors, and even criminal sanctions for those who knowingly engage illegal workers.
Concerns raised with implementation of Section 48
Alongside the news of the implementation date, the results of a consultation conducted in late 2025 on the proposals (as they were at that time) to extend the civil penalty scheme to other working arrangements were released. The response explores changes incoming with the implementation of section 48 and its effect on UK businesses. Within the consultation it was found that out of a sample of 145 employers, 46% stated that during onboarding they only conducted right to work checks for direct employees. Following the 1 October 2026, those employers would be at serious risk of non-compliance.
The consultation highlighted that UK employers are apprehensive about the implementation of section 48 and its implications. Common concerns raised included:
- Additional costs on the business, such as the cost of greater use of digital ID checking providers;
- Administrative burdens – namely regarding “sectors with high levels of labour flexibility, seasonal demand, or rapid recruitment cycles, including industries reliant on short-term contractors.”;
- Delays this could cause to day-to-day operations;
- Data protection and information sharing – particularly where businesses are asked to verify the status of individuals not directly employed by them (especially relevant when considering roles associated to the gig economy such as Deliveroo couriers); and
- feedback that the current guidance on right to work checks is too complex and overly detailed.
While the updated right to work guidance is yet to be published, it seems that some of the concerns raised have been addressed.
How the Government is looking to address these concerns
Throughout the paper many of the concerns raised are acknowledged and addressed, with a hopeful message that any changes will be “proportionate and manageable”. It has been stated that “steps are being taken to modernise and simplify the right to work system through increased use of digital services … The growing use of digital verification technology and online checking services provides opportunities to manage higher volumes of checks more efficiently, reduce administrative burdens, and improve consistency across sectors.”.
The concerns regarding unclear guidance on right to work checks are also addressed within the consultation response. It is affirmed many times that the guidance will be updated to ensure it is clear, comprehensive, and supportive to employers. It has further been suggested that it will include clear definitions, practical examples, and scenario-based guidance to assist with understanding. It is currently unknown when the updated guidance will be released.- changed this as there was a lot of repetition of the word clear.
The Draft code of Practice
A new Draft code of practice on preventing illegal working has been released. The draft code provides some clarity on what the new framework around right to work checks will look like, as well as providing some helpful updates on how checks can be conducted.
Expansion of civil penalty regime:
- The draft code confirms that businesses who directly engage individuals will be caught by the civil penalty regime, including businesses who engage workers under a worker’s contract, as individual sub-contractors, or via an online matching service. This means right to work checks will have to be carried out on these wider groups of individuals by the business directly engaging them.
- As well as direct engagement, the draft code confirms that there will be extended liability for non-direct contractual arrangements.
- Where there are contracting chains or online matching services, the draft code requires certain parties in the chain to obtain a written statement with their contracting partners that contain specific requirements around right to work checks and practices within the chain, including requirements to undertake right to work checks, audit rights, and enforcement provisions. Where these “prescribed requirements” are met, the end “employer” may have a defence against any illegal working penalty that arises further down the chain (but complacency is not advised). The Home Office’s intention is to try and identify the business with the direct contractual relationship with the individual to determine where any civil penalty should lie. However, where this is not possible, the next line of defence for anyone involved in the contractual chain is to comply with the prescribed requirements; otherwise, they could face liability for an illegal working penalty.
- We now have confirmation that the new scheme is not intended to apply to individuals who are genuinely self-employed, operating in business on their own account, trading in their own name or through their own business, and contracting directly with clients or customers for work or services. Individuals who do not operate as a business in their own right and do provide work through an intermediary or online matching service, will be caught by the new requirements.
- The draft code also confirms that the new regime does not apply to end user clients or customers who are not contracted to provide work or services to another party as part of a chain of contracts.
Digital right to work checks
- New terminology is being introduced, and Identity Document Validation Technology (IDVT) is being replaced with registered Right to Work Digital Verification Service Provider (RtW DVSP). RtW DVSPs [ES1.1]must be registered for the check to be valid.
- RtW DVSPs will be able to conduct valid checks on British and Irish passports that have expired in the last 6 months (noting that the existing requirement for a digital check is that the passport must be current), as well as expanding generally the types of documents that can be used for a digital check.
- Enabling RtW DVSPs to conduct facial recognition checks to confirm the person presenting for work matches the person in the documents, removing the need for the employer to conduct the separate ‘imposter check’.
Other key points to note:
- The draft code states that for online right to work checks, the employer/business should record their full name as this will help reduce the risk of statutory excuses being questioned.
- The draft code also confirms employers/businesses can use automated workflow tools to conduct checks but remain ultimately responsible for ensuring the check is done in the prescribed manner. While the Home Office does not endorse any particular technology or tool, this could be a useful development for larger businesses.
What should employers do now?
The draft code of practice is helpful as it sets out how the Home Office intends to enforce liability for illegal working, particularly in relation to extended liability.
While we await the full guidance (which we understand will include helpful illustrations on how the new rules will work in practice), businesses should continue to map out where labour services come from, who they engage with, and whether they will fall under the new regime from 1 October 2026.
Employers and all businesses that use arrangements for the supply of labour via contracting chains or online matching services should review their commercial agreements with providers and update them to ensure they contain the prescribed new requirements set out in the draft code.
Businesses who conduct digital checks should also review their arrangements with current providers and check they have the required registration to enable them to continue conducting digital checks past 1 October 2026.
Those who deal with right to work checks internally, including HR teams and managers on the ground, need to be made aware of these new requirements and trained in how to conduct compliant checks.
The implementation of Section 48 is a further indication of the Home Office’s intention to cut down on illegal working in the UK, and particularly, the gig economy. Due to the severe penalties associated with noncompliance, it is imperative that businesses implement changes to their onboarding processes and methods of engagement. This will help ensure compliance with the new requirements when they come into force.
How can we help?
If you would like to discuss how these changes may affect your business and recruitment, please contact our immigration team today.
Alex Christen
Partner
Business Immigration, Employment, Employment Investigations, Equality & Diversity, International
Alex is a Partner in our Employment and Immigration team. Alex leads the business immigration team, successfully supporting companies and individuals with immigration issues, including understandin... Read More
Jake Hayward is a Trainee Solicitor in our Employment and Immigration team. Jake studied both LLB Law and his LPC LLM at Swansea University.... Read More
