Draft legislation on illegal working

A proposed amendment to the Border Security, Asylum and Immigration Bill (the Bill) was published on 7 May 2025 which effectively looks to extend the illegal working regime for businesses.

The Government have confirmed that the intent behind the Bill is to improve UK border security and give law enforcement the tools to tackle illegal working. As part of that, the Bill is set to expand the requirement for businesses to carry out right to work checks beyond employees, as well as the circumstances in which employers may be liable for a civil penalty.

Whilst the Bill is only in draft and it can be amended right up until it is passed, employers should be aware of the possible incoming changes and ensure their current right to work checking processes are able to withstand increased pressure.

What is changing?

All employers have a duty to prevent illegal working and a failure to do so can result in a substantial civil penalty of up to £60,000 per illegal worker. As it stands, employers may obtain a statutory excuse to a civil penalty for illegal working by carrying out a right to work check following the Home Office guidance. Those checks must be carried out against employees. A statutory excuse can act as a defence if illegal working is uncovered.

However, employers are not currently expected to carry out right to work checks for those who are not regarded as direct employees. The new draft legislation looks to change this and will require checks to be done for anyone working for them, including where they are:

(1) engaged under a worker’s contract;
(2) engaged as an individual subcontractor; and
(3) an online matching service providing the details of an individual who is a service provider to potential clients or customers.

The draft legislation confirms that liability for a civil penalty for illegal working will be extended to essentially any person who is providing work or a service for that business, even where there is no contractual relationship, or notably the business does not know the person is providing the service. The amendments are wide ranging and seem to catch almost every possibility so if approved, businesses will have to expand their right to work checks to every individual in the business. This is a direct response to the evolving work arrangements now used in addition to traditional employment models, and intended to further narrow the opportunities for illegal working in the UK.

Who will this affect?

These changes, if approved, will affect all businesses, but notably those who engage staff on a more casual basis, such as those working in the gig economy, agency workers, self-employed contractors and those on zero hours contracts. Anyone who is classed as working in the name of the business will need to have a right to work check conducted before they start work. A failure to do so soon may result in a civil penalty if illegal working is uncovered. There is the potential for multiple businesses to be liable for the same illegal working and so reliance should not be placed on checks carried out by another business if these changes are implemented. This would significantly increase the administrative burden placed on businesses.

It is expected that the social care, construction and hospitality sectors will be most affected by these changes. Those are also the sectors which are classed as more ‘high risk’ by the Government, and we have certainly seen a crackdown on the social care sector in recent months. They are also the sectors that make the most use of more casual labour, which is really the focus of these amendments to the Bill.

The expansion of the illegal working regime will evidently bring illegal working for agency staff into the picture, for example, where a business enters into a contract to provide work or services and engages another person to provide that work or service.. Similarly, the regime is being extended to those situations where an individual is employed by a business, who then delegates the work to another individual, meaning that business can become liable for the staff who work was delegated to.

What can businesses do now?

The changes are only in draft form at the moment and there is still some time before they can be introduced, if approved. However, this does mean that businesses have time to review their current policies and practices.

The expansion of the illegal working regime is reflective of the Government’s increased focus on compliance. Businesses will need to ensure they have good processes in place so that they are able expand their right to work checking systems, if these changes are passed through. Given the broad reach of these changes, having clear oversight of who is engaged by the business, contractual chains for the provision of work or services and those actually carrying out work will be crucial. A thorough review of current practice and right to work checks is also advisable, to ensure any issues are ironed out as soon as possible, given the increase in the Government’s efforts to tackle illegal working. It is also worthwhile considering expanding current scope of ‘right to work’ checks to ensure you are able to meet the demands of the new regime and consider voluntarily conducting these checks before any changes are introduced.

The Government aims to undertake a formal consultation with businesses before these changes are introduced. Those affected, particularly key sectors such as those noted above, should be alive to opportunities to input into that consultation to help shape these changes.

Our Business Immigration team has seen a recent spike in illegal working enforcement investigations and action. We are on hand to help with any queries you may have as a result of a review of your processes, specific illegal working concerns, and we can provide training on right to work checks and processes, if required.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2025. Specific advice should be sought for specific cases. For more information see our terms and conditions.