Right to Work Checks in the UK and Europe: Who Is Liable?
With the implementation of the UK's October 2026 reform regarding Right to Work Checks, an important question for international businesses is raised: “who is responsible for ensuring that an individual has the legal right to work when that individual is not a conventional employee?”
For many years, Right to Work checks in the UK were principally associated with employers recruiting employees under contracts of employment. Recruitment agencies, payroll providers and end clients operating under alternative engagement arrangements often relied on the distinction between employment and self-employment when determining their responsibilities.
That distinction can no longer be relied upon in the same way.
How the UK Scheme Is Expanding
The legislation underpinning the Right to Work Scheme (“the Scheme”) applied across the whole of the UK and is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”).
The Border Security, Asylum and Immigration Act 2025 (“BSAI 2025”) amends the IANA 2006 Act by extending the scope of employers required to prevent illegal working under the Scheme and the sanctions for non-compliance beyond traditional employment relationships to a wider range of working arrangements.
Section 48 of the BSAI 2025 amends and expands the definition of “employer” for the purposes of IANA 2006 and inserts a new section 14A into the IANA 2006.
Section 14A provides that references to a person employing another individual includes engaging an individual under a worker’s contract, engaging an individual sub-contractor and through an online matching service providing details of an individual who is a service provider to potential clients or customers.
By way of example of a worker’s contract:
If an individual is registered with an employment business which supplies temporary workers to restaurants during busy periods. The individual is engaged by the employment business on a contract for services and accepts short-term assignments when offered. The employment business is the individual’s employer for the purposes of the Right to Work Scheme and is therefore responsible for the right to work check. The employment business may be liable for payment of a civil penalty if the individual is found to be working illegally while undertaking that Section 48 of the BSAI 2025 inserts a new section 15A into the IANA 2006, under which civil penalty liability may also extend beyond the employer who holds the direct contractual relationship with the worker. This is referred to as extended liability.
Extended Liability Across the Supply Chain
Extended liability applies where:
a person is under a contract to provide work or services to a third party and enters into a contract with another employer providing workers to fulfil that contract.
an online matching service provides details of a service provider to clients or customers and the service provider enters into a contract with a client or customer, or
an employer employs an individual to provide work or services and the contractual arrangements allow the individual to substitute their work or services to another individual. This means the person contracted to provide work or services to a third party, an online matching service or the employer in the case of a substitution clause, may be treated as employing any individual who personally provides the work or services.
In these circumstances, they can prevent illegal working and establish a statutory excuse through compliance with the prescribed requirements relating to the contractual arrangements.
The changes are significant, not simply because they extend potential liability, but because they recognise how modern labour supply arrangements actually operate.
Today, businesses engage individuals through recruitment agencies, independent contractor agreements, outsourced service providers, online platforms and multiple subcontracting arrangements.
The question is no longer necessarily just who employs the individual. It is also who engages them, under what arrangement, and where the law places responsibility for ensuring they are authorised to work.
The above is particularly relevant to recruitment agencies supplying temporary workers, businesses outsourcing services and providers managing individuals under various contractual arrangements.
Compliance, much like legislation, is not static but continues to evolve. Changes in one jurisdiction concerning matters such as immigration, the right to work, due diligence, extended liability and misclassification can have ripple effects across other jurisdictions, potentially influencing regulatory approaches and future legislative developments.
Comparable Approaches Across Europe
The UK is not the only jurisdiction that has recognised that the responsibility for illegal working can extend beyond the direct employer.
EU countries already operate comparable frameworks.
The Netherlands provides a particularly relevant example.
Under the Dutch Foreign Nationals Employment Act (Wet arbeid vreemdelingen or WAV), the definition of an employer for immigration compliance purposes is considerably broader than the conventional contractual definition.
A business may be considered responsible for a foreign worker even when that worker is supplied through a recruitment agency or subcontractor.
WAV prohibits employers from allowing workers from outside the European Economic Area (EEA) and Switzerland to perform work in the Netherlands without the required work permit or the combined residence and work permit.
More than one organisation in the labour supply chain can have obligations concerning the same individual.
Consequently, an end client cannot necessarily rely on the existence of an intermediary to avoid responsibility.
The financial risks for violations are considerable, with fines commencing in thousands of euros per illegally employed worker.
Keeping Pace with an Evolving Compliance Landscape
Establish what regulations exist in the jurisdiction in which you currently operate. Conduct right to work checks using an individual’s original documents. Verify identity/passport and all required documents.
Ensure contractual arrangements are attended to. Stipulate that further subcontracting is only permitted with prior consent and that the substitution clauses reflect your contractual intentions.
Written by Amanda Nicolaou
Legal Advisor
Felix Negribus
Need Support With Right to Work or Immigration Compliance?
Contact our friendly team to find out more about how our professional services can support you, whether you're a recruitment agency, contractor or end client.
