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Illegal working in construction: expanding right to work checks
Clara Gautrais and Sean Pearce Fragomen
All employers in the UK have a responsibility to prevent illegal working. Image: Jolin, Dreamtime
Ahead of proposed changes to the right to work scheme, construction employers have an opportunity to voice their concerns and challenges.
The UK government is inviting businesses, trade unions and industry associations in the construction sector to provide their views on the upcoming extension of right work checks to businesses hiring ‘gig economy’ and zero-hour workers.
The construction sector is targeted by this policy change as, according to the Chartered Institute of Building, self-employed workers make up more than a third of its workforce.
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Businesses can voice their views, concerns and potential challenges online before 11.59pm on 10 December.
What is changing?
The right to work check regime is a key tool used by UK law enforcement agencies to detect and prevent illegal working.
The government will be extending right to work checks to include the gig economy employers and subcontractors
Clara Gautrais, Fragomen
Currently, all employers in the UK have a responsibility to prevent illegal working. They must undertake right to work checks on all prospective employees before they start work in order to establish a statutory excuse against a civil penalty for illegal working.
Subsequent checks may also be required for those with time-limited permission to stay in the UK.
Those businesses that fail to comply with the right to work check guidance face adverse consequences, including financial penalties of up to £60,000 per illegal worker employed, reputational damage, as well as criminal convictions.
The government’s recent Operation Sterling, which arrested more than 8,000 illegal workers and removed more than 1,050 from the UK in the year ending September 2025, exposed cracks in the existing compliance regime.
It also comes as a new report from King’s Business School suggests that the precarity experienced by some self-employed workers in the housebuilding sector facilitates exploitation.
The right to work scheme is currently limited to right to work checks on workers who are direct employees under a contract of employment, service or apprenticeship, whether express or implied and whether oral or in writing.
In light of the crackdown on illegal migration and an increase in compliance visits, the government will be extending right to work checks to include the gig economy employers and subcontractors.
In the consultation’s prompted questions, the gig economy is defined as where employers and employees exchange money for labour on a per task basis.
A subcontractor is defined as a person who has agreed to carry out operations for a contractor by themselves individually or by their employees or their own subcontractors.
Under the new laws, these workers would now fall within the scope of the right to work checks scheme. Businesses may face penalties even if they are not aware of their obligations.
Businesses that are reliant on contractors or the gig economy may need to invest in more resources, both human and financial
Sean Pearce, Fragomen
Shaping the new policy and guidance
Businesses that are reliant on contractors or the gig economy may need to invest in more resources, both human and financial, to navigate the already complicated right to work scheme, and are strongly encouraged to respond to the government’s consultation.
Businesses are invited to provide their views on a range of issues:
Will their business model now be brought into the scope of right to work checks?
What challenges will their business face in carrying out right to work checks?
Will their business need to invest in new systems, training or staff to comply with the new laws?
Will additional support or guidance help them comply?
Do they use digital verification services already?
The government is interested in businesses’ views on how these checks should be operationalised and enforced, as well as how the processes can be simplified to make employers’ responsibilities easier to fulfil.
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