Home Office consults on updated right to work code to prevent discrimination

Background

On 15 April 2026, the Home Office published a draft Code of Practice on avoiding unlawful discrimination while preventing illegal working. The Code is intended to support employers in carrying out right to work checks without discriminating and would replace the current Code of Practice which has been in force since April 2022. If approved, the updated Code will apply to all employers and is expected to take effect for employment commencing on or after 1 October 2026, as well as any repeat checks on existing workers taking place after this date.

This follows recent updates to sponsor guidance, published on 8 April 2026, which introduced a new requirement that sponsors must carry out right to work checks on all workers they employ or engage, irrespective of whether or not they are sponsored, including where there is no direct employment relationship.

Key points

The draft Code reinforces that employers must carry out right to work checks consistently across all candidates, regardless of nationality or background. It emphasises that assumptions about an individual's immigration status based on factors such as appearance, accent or name may amount to unlawful discrimination.

Employers are advised to ensure recruitment decisions are based on suitability for the role and to avoid practices that could disadvantage particular groups. The guidance also highlights risks around indirect discrimination, for example where policies unintentionally exclude individuals with a lawful right to work.

The Code provides practical guidance on conducting checks, including the use of digital systems, and makes clear that individuals must not be treated less favourably because of the type of documentation they provide or because they have a time-limited right to work.

The Code introduces a broader definition of “employer”, reflecting the approach taken in the Border Security, Asylum and Immigration Act 2025. This extends the right to work regime beyond traditional employment relationships to cover a wider range of working arrangements, including individuals engaged under worker contracts, individual subcontractors and those providing services through online matching platforms. In practice, this brings into scope many non-traditional models, such as gig economy and zero-hours arrangements, where businesses may not previously have viewed themselves as employers for these purposes. The Code also confirms that employment and recruitment agencies fall within scope where they are acting as employers, and notes that they may have additional and separate obligations under the Equality Act 2010 as employment service providers.

An even broader definition is contained within the updated sponsor guidance, which requires sponsors to check the immigration status of "any worker you wish to sponsor (including a worker who is not your direct employee), or any worker you otherwise wish to employ or directly engage". Sponsors who fail to carry out these checks - the guidance warns - will be in breach of their sponsor duties.

Learning points for employers

The draft Code underlines the importance of a consistent and structured approach to right to work checks. Employers should review their recruitment processes, training and policies to ensure checks are carried out uniformly and without assumptions about candidates’ backgrounds.

Employers should also be aware of the increasing focus on how right to work obligations apply in non-traditional working arrangements, particularly where individuals are engaged outside standard employment contracts. Reviewing onboarding processes across different engagement models will be important to ensure compliance. For sponsors, the recent update to the sponsor guidance means that this is essential now; businesses which are not sponsors still need to keep these developments under review so that they are ready to comply with the new requirements when they come into force, possibly as early as 1 October 2026.

Anyone who believes they have been discriminated against on the basis of race can bring a claim in the employment tribunal. The tribunal may take the Code into account when determining whether an employer has acted unlawfully. Clear procedures and appropriate training will be key to reducing the risk of discrimination claims while maintaining compliance with immigration requirements.

For more information or advice, please get in touch with Tom Brett Young in our Immigration team.