The Employment And Immigration Intersection: Should Right To Work Checks Be Carried Out For Non-employees?

Ensuring that only individuals with the right to work in the UK undertake activities for, or at, your business is a central pillar of UK immigration compliance. The legal framework is primarily designed around 'employment.' Protection against a civil penalty is only available where an employer has carried out right to work checks on its employees. This, however, does not resolve the wider practical question many organisations face: should you check the right to work of individuals who are not your employees? In practice, a risk‑based approach is essential.

When checks are legally required

The Home Office requires employers to conduct compliant right to work checks to establish a 'statutory excuse' (i.e. protection) against civil liability if an individual is later found to be working illegally. This regime currently focuses on 'employment', typically understood as work under a contract of employment or apprenticeship.

If you are not the employer, you do not obtain a statutory excuse by checking a non‑employee's right to work, and you are not under a direct legal duty to do so for the purposes of the civil penalty scheme.

That said, businesses can still face significant exposure if individuals without the right to work in the UK perform activities for them via other arrangements. The civil penalty for illegal working is currently up to £60,000 per illegal worker, and there is also criminal liability where a person is employed in circumstances where the employer knows or has reasonable cause to believe they do not have the right to work. While these sanctions are framed around employment, Home Office compliance officers will assess the reality of the working relationship. An arrangement described as 'self‑employed' or 'volunteering' can be scrutinised to determine whether, in reality, it amounts to employment.

It is crucial to note that, where you are not the direct employer, but you are sponsoring the individual under the Points Based System, it is a legal requirement to undertake the right to work check. This requirement stems from your record keeping duties as a licenced sponsor.

The balance of risks

The current Home Office guide for employers on right work checks 'strongly encourages' organisations to check that their contractors and labour providers carry out right to work checks on people they employ, engage or supply.

There are practical drivers for checking non‑employees' right to work, even when no statutory excuse is available:

1. Misclassification risk: If a contractor, consultant or "volunteer" is in fact working under your direction and control, the relationship could be classified as employment. In that scenario, the absence of a proper right to work check at the outset undermines your ability to defend against civil penalty exposure and weakens your position on any criminal liability regarding the illegal working.
2. Sponsor compliance: Home Office compliance audits assess the overall robustness of a sponsor's prevention of illegal working controls. Even where individuals are not on your payroll, the Home Office may wish to be satisfied that you have credible systems for preventing illegal working across your operations, including for third‑party staff on site. Weaknesses in these controls can influence the Home Office's overall assessment of your sponsor compliance. You should maintain clear written policies covering the presence and activities of intra-company visitors and other visitors to your business, as well as non-employee engagements e.g. for self-employed contractors and agency workers. These policies should be aligned with HR and procurement processes, and you should be able to evidence their practical enforcement.
3. Reputational and operational risk: Discovering an individual lacks permission to work after they have been integrated into your operations can cause disruption, contract breaches and adverse publicity, particularly in regulated sectors or public procurements.
4. Supply chain accountability: Many businesses are principal contractors or client organisations in multi‑layered supply chains. While you may not be the employer, you are still responsible for who carries out work on your behalf or at your sites.
5. Draft legislation published on expanded illegal working regime: Draft illegal working legislation confirms proposals to extend the illegal working regime to non-employee workers, self-employed contractors and online job matching platforms. Liability for an illegal working civil penalty is also substantially widened. Incorporating additional checks to your operations now could mean you are well-prepared for this change becoming law. You can read our detailed article on the legislation here, and our article on how you can respond to the Home Office's consultation on the proposed changes here.

On the other hand, it is worth considering whether there are potential downsides to expanding your right to work checks to non-employees ahead of the expanded right to work scheme coming into effect, such as operational and resourcing strain. Depending on your business and sector, the population of non-employees that would have to be checked may be significantly larger than your employee population. It is also not yet known whether right to work checks may be modified under the expanded regime.

Other considerations

• Responsibilities of third party employer: Where an agency or service provider accepts contractual responsibility, gives robust warranties and audit rights, and operates established compliance processes, duplicating checks may be unnecessary, provided you are confident you can evidence your reliance on their checks.
• Data protection and discrimination considerations: Any checks must be conducted lawfully and consistently to avoid discrimination. Identify a clear lawful basis for processing, collect only necessary data, and store records securely for a defined retention period under your policy.
• Method of checking: Use the most robust route available (ideally the Home Office online check for digital status). Where only physical documents are available, verify proportionately and retain copies securely. Do not apply a more lenient process to non‑employees if there is a misclassification risk.
• Contractual obligations: Embed prevention of illegal working obligations in contracts with third party contractors and labour providers. Consider whether it would be appropriate to include warranties of right to work, indemnities, evidence‑on‑demand, audit rights, status‑change notifications, and clauses to ensure these terms are passed down to sub-contractors.

Practical takeaways

A proportionate approach to right to work checks for non-employees could enable you to manage illegal working risks without attempting to replicate full employee onboarding for every third party.

Ultimately, the question is less whether you are legally compelled to check non‑employees, but whether failing to do so would leave you exposed if and when the Home Office or a court/tribunal looks at the substance of what those individuals actually do for your business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.