Right to Work in 2026: Preventing Illegal Working Without Discriminating

Right to work compliance has rarely been under more scrutiny. In 2025, the Home Office issued 2,438 civil penalties to UK employers, totalling more than £130 million – with illegal working visits up 40% and arrests up 42% on the previous year. The message for anyone who hires is clear – how you check right to work is now a matter of active enforcement, not administrative routine.

At the same time, a second expectation is coming into sharper focus. From 1 October 2026, an updated Code of Practice on avoiding unlawful discrimination while preventing illegal working applies to all employment beginning on or after that date. Employers are being asked to do two things at once, prevent illegal working rigorously and do so without disadvantaging anyone on the basis of their nationality or background.

Getting one right at the expense of the other is no longer good enough. This article looks at what is changing, where the risk concentrates, and how employers can keep right to work checks both robust and fair.

A tightening enforcement environment

There has been no single headline reform, instead the right to work regime has been tightening steadily – through higher penalties, wider scope and more active enforcement.

Civil penalties now reach up to £45,000 per worker for a first breach and £60,000 for a repeat breach. In sectors built on agency labour, sub-contracting and short engagements, that exposure accumulates across a supply chain rather than sitting with a single employer.

The scope of who must be checked is widening too. Under measures in the Border Security, Asylum and Immigration Bill 2025, the duty to carry out right to work checks is being extended to agency workers, individual sub-contractors and those engaged through the gig economy – arrangements many businesses have historically treated as outside the checking regime.

Enforcement is following the legislation. The Home Office’s own enforcement data shows a marked rise in visits, arrests and penalties, supported by intelligence referrals and routine data-sharing with HMRC. For employers, the practical effect is that an unclear or inconsistent process is now far more likely to be tested.

A second duty: compliance without discrimination

Preventing illegal working is only half of an employer’s obligation. The other half is set out in the Code of Practice on avoiding unlawful discrimination while preventing illegal working, the updated version of which applies to employment commencing on or after 1 October 2026.

The risk it addresses is a familiar one. Under pressure to avoid penalties, employers can be tempted to apply checks selectively – asking only candidates who appear or sound foreign to prove their status, or declining anyone who cannot produce a UK passport. Both are unlawful under the Equality Act 2010, and both expose an organisation to discrimination claims even as it tries to stay compliant.

The Code is clear that the safeguard is consistency – every candidate should be checked, in the same way, regardless of nationality or background, with no assumptions made about who is likely to have the right to work. Done well, an inclusive process is not in tension with compliance – it’s the mechanism that delivers it.

The move to digital – and what it means for fairness

The way checks are carried out has also changed. The move to eVisas has replaced many physical documents with online immigration status, and the Employer’s Guide to Right to Work Checks (26 June 2025) sets out three routes:

• Digital identity verification for valid UK and Irish passport holders via a certified provider
• Online share code checks for those with a UK Visas and Immigration account or eligible biometric residence permit
• A manual document review for everyone else

Used well, digital identity makes checks faster and reduces the scope for human bias. Used poorly – for example, by steering only some candidates towards a digital route – it can introduce the very inequities the Code of Practice warns against.

The point is not that digital is inherently fairer, but that the route a candidate takes should be determined by their documents and circumstances, never by assumptions about their background.

Where the risk concentrates

In practice, the same pressure points appear across most organisations.

Checks are often applied inconsistently – more thoroughly for some candidates than others, or delegated to agencies and suppliers whose standards are assumed rather than specified. Where hiring is fast and high-volume, the temptation to shortcut the process, or to make judgements based on a name or an accent, is greatest – and most legally dangerous.

Records are a second weakness. Evidence of who was checked, how and when frequently sits across email chains, spreadsheets and local systems rather than in a single auditable record. When a civil penalty notice, a discrimination complaint or a client audit arrives, the ability to demonstrate a consistent, defensible process matters as much as the checks themselves.

None of this amounts to bad faith – it’s a consequence of pace, subcontracting and fragmented systems. But it creates exposure on both fronts at once – to illegal-working penalties and to discrimination claims.

What Good Right to Work Compliance Looks Like

Organisations managing this well are not necessarily doing more checks. They are applying them more consistently, earlier, and with better evidence.

A single standard is defined and applied to every candidate, regardless of nationality, with the verification route determined by documents rather than assumptions. As much of the process as possible is completed digitally, before day one, reducing delays and removing opportunities for inconsistent human judgement. And every check is captured in a centralised, auditable record, so that a statutory excuse can be evidenced and every decision explained – whether the question comes from the Home Office, a client or a tribunal.

The result is a process that protects the organisation against illegal-working penalties and stands up to scrutiny on fairness at the same time.

Questions employers should be asking now

For many, the starting point is a structured review of existing processes.

• Is every candidate checked in the same way, regardless of nationality or background?
• Is the verification route driven by the individual’s documents, rather than assumptions about who is likely to have the right to work?
• Is there a single, auditable record showing how each person was cleared to work, and when follow-up checks are due?
• Where checks are delegated to agencies or sub-contractors, is the standard specified and evidenced, rather than assumed?
• Are processes ready for the Code of Practice that applies to employment from 1 October 2026?

These are the questions increasingly being asked in audits, tenders and internal assurance reviews.

How CBS supports right to work compliance

Organisations reviewing their right to work processes should look for solutions that support all Home Office-approved verification routes, apply checks consistently regardless of nationality or background, and provide clear, auditable records that help demonstrate compliance.

CBS’s UK Right to Work Check is designed around those principles, combining digital identity verification, online share code checks and manual document review within a single compliant workflow. Supported by experienced screening specialists and secure technology, our service helps organisations simplify compliance while delivering an inclusive candidate experience.

If you are reviewing how right to work is managed across your workforce and supply chain, speak to our expert team about keeping checks compliant, inclusive and audit-ready.