The Home Office has issued a consultation on a draft Code of practice for employers on avoiding unlawful discrimination while preventing illegal working. The draft Code is not materially different from the current version (last updated in 2022) except in relation to one key area (which we expand on below). In our view, many employers already have a good grasp of the Code’s principal aim of avoiding unlawful discrimination against candidates and employees when carrying out right to work checks.
The draft Code includes a new definition of “employer”, which is no great surprise because it reflects the relevant provisions under section 48 of the Border, Security, Asylum and Immigration Act 2025. These were introduced to extend liability for illegal working and the need for checks beyond employees in the traditional sense but have not yet been implemented, presumably because a separate consultation on the changes which closed in December 2025 has still to be concluded by the Home Office. We discussed our concerns regarding the consultation and the changes in our 2025 article here.
Nonetheless, the new draft Code now states that:
“’Employer’ means a person who employs an individual:
[*there appears to be a...
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