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From 1 October 2026, the UK's illegal working regime is undergoing a huge change. The new rules are complex and bring significant changes to who must carry out right to work checks and when. For businesses operating in the creative industries, the impact could be particularly far-reaching. Read on to learn more.
For a summary of what’s changing, see our previous article.
Why should creatives care about immigration rules?
The creative industries are significantly affected by the expanded regime because of the way work is structured across the sector. Unlike industries with stable, long-term workforces, creative businesses - from film and television production to live music, fashion, advertising, gaming and publishing - typically operate through networks of short-term, project-based engagements, layered supply chains, and a high proportion of freelance and self-employed talent. As a result, the new regime has the potential to affect not only immigration and employment compliance, but also the way services are procured, managed and documented contractually.
Until now, right to work checks have been primarily an HR and recruitment issue. The obligation sat with direct employers (in the truest sense of the word): if you hired someone under a contract of employment, you needed to check their right to work before they started.
From October, that changes in two important ways.
- First, the definition of "employer" is becoming much wider. The Border Security, Asylum and Immigration Act 2025 broadens who counts as an "employer" for right to work purposes well beyond traditional employment relationships. It now covers engagements under worker's contracts (e.g. agency workers, zero-hours workers, casual staff), inpidual sub-contractors and online matching services. This means many more businesses will need to carry out right to work checks directly on the inpiduals they engage.
- Second, a new "extended liability" regime reaches into supply chains and subcontracting arrangements. Where a business is contracted to provide services to a third party and subcontracts delivery to another employer, it may be treated as “employing” any inpidual who personally carries out the work – even if it has no direct relationship with that inpidual. Because the definition of "employer" is now wider, the concept of contracting with "another employer" in a supply chain is correspondingly wider, pulling more subcontracting arrangements into scope.
The penalties are serious: up to £60,000 per illegal worker for a repeat breach, potential criminal liability carrying up to five years' imprisonment, and reputational consequences including potential publication as a non-compliant employer.
Which work relationships are caught by the new right to work regime?
The new expanded illegal working regime applies to employers (under the wider definition) who employ individuals to carry out work in the UK. This is broken down in the draft Employer’s guide to right to work checks into three types of work arrangement.
To see who is exempt from the expanded illegal working regime, see ‘Who is NOT caught?’ in our previous article.
A traditional contract of employment
A TV/film/theatre production company will be treated as a direct employer and responsible for performing a right to work check on a person who is employed under a contract of employment for the duration of the production. Examples include Director, Production Executive, Screen/Script Writer, and Stage Manager.
A worker’s contract
Production companies, theatres and music/arts venues will be treated as a direct employer and responsible for performing right to work checks on individuals who are engaged under a worker’s contract.
A worker’s contract is defined as a contract under which an individual undertakes to perform work or services personally for another person, where that person is not a client or customer of a profession or business undertaking carried on by the individual.
This captures the vast majority of crew who work on production schedules set by the production company, such as camera operators, sound engineers, and other crew employed under contracts that meet the definition of a worker’s contract (distinct from traditional contracts of employment). This includes any workers who may have engaged with the production company or venue through their own sole trader business or through a Personal Services Company (PSC).
For further analysis on the treatment of freelancers who contract via PSCs, see ‘What about individual freelancers who contract via PSCs?’ in our previous article.
Individual subcontractors
An individual sub-contractor is defined as an individual who has entered into a contract with a person to provide work or services, where that person has itself contracted with a third party to provide or arrange for the provision of the work or services, but the individual has not contracted directly with that third party.
In practice, this captures the triangular arrangement where, for example, a creative agency is contracted by a brand to deliver an immersive experiential event and engages a freelance lighting designer as a sole trader to design and rig the installation. The lighting designer has no contract with the brand, only with the agency. The agency is the direct employer responsible for performing a right to work check on the lighting designer.
Online matching service
An online matching service keeps a register of service providers with a view to matching them with clients or customers. Clients or customers can submit enquiries to see if a match can be made with a service provider. The online matching service will charge a fee per match.
This arrangement will apply where a business wants to hire a photographer for a corporate event and uses an online matching service that supplies photographers. The platform matches a photographer to the client, sets the terms of engagement, handles payment and allocates the work. The photographer then personally carries out the photography services for the client. The online matching service is the photographer’s direct employer and responsible for the right to work check.
How does a direct employer defend themselves against liability for a civil penalty?
By performing a compliant right to work check before the work starts. The engaging employer can use a manual document check, the Home Office online service, or a registered Right to Work DVSP. If the individual cannot provide evidence of their right to work, the employer may, in certain circumstances, be able to verify their status through the Employer Checking Service.
Evidence must be retained for the duration of the engagement plus two years.
How does extended liability impact the creative industry?
The new rules introduce three scenarios in which liability for illegal working can extend beyond the direct employer of an individual worker. The practical consequence is that certain subcontracts and supplier agreements will need to contain specific written terms before work starts, or the upstream business risks losing its statutory excuse against extended liability (explained further below).
1. Subcontracting delivery of services
Where a business is under a contract to provide work or services to a third party, and enters into a contract with another “employer” to provide or arrange workers to carry out that work, the upstream business may have extended liability for an illegal working civil penalty in respect of any individual who personally provides the work or services in the supply chain – even though it has no direct relationship with that individual.
Example
A broadcaster contracts with a production company to deliver a television series. The production company subcontracts post-production to a VFX house, catering to a facilities company, and unit transport to a logistics provider. Each of those sub-contractors in turn engages individuals including compositors, runners, chefs, drivers who personally carry out the work.
Under the extended liability provisions, the production company may have extended liability for a civil penalty if any individuals who personally carry out the work don’t have the right to do so. This is because it is under a contract to provide services to the broadcaster client and has subcontracted delivery to another employer.
2. Online matching services
Where an “online matching service” (i.e. a platform) matches a corporate service provider with a client, and the corporate service provider enters into a contract with that client, the platform may have extended liability for an illegal working civil penalty in respect of any individual who personally carries out the work.
Example
An online marketplace platform matches a brand with a corporate video production company. The production company contracts directly with the brand and sends members of its own crew to deliver the shoot. Because the production company is a business that engages its own workers, the platform may have extended liability for an illegal working civil penalty if any of the crew don’t have the right to work.
3. Substitution controls
Where a business employs an ‘individual sub-contractor’ or is an online matching service engaging a ‘service provider’ under a contract that permits substitution – i.e. allows another person to carry out the work in their place – the business/online matching service may have extended liability for an illegal working civil penalty in respect of the substitute as well as the worker it has directly engaged.
Example
A venue is contracted to provide a live event to a ticket-buying audience and enters into a contract with an artist's management company which in turn supplies the performing and technical personnel. An ill backing vocalist is replaced overnight. The contract permits a singer to ask a substitute to complete work on their behalf. Under the new rules, the management company may be treated as employing any individual who personally provides the work or services, even if there is no direct contractual relationship between the management company and that individual, and even if the management company does not know the individual's identity.
How does a business establish a statutory excuse against extended liability?
For businesses caught by the extended liability provisions, establishing a statutory excuse requires compliance with three prescribed requirements before the work starts:
For detail on what your contracts must include, see our previous article.
Existing contracts will need updating, not just new ones. The changes come into force on 1 October 2026 and apply to anyone who starts work on or after that date. In practice, this means it’s not sufficient to include the prescribed wording only in contracts concluded from 1 October 2026 onwards. Existing contracts that will still be in force on or after that date, and under which new workers may be engaged or new assignments may commence, will also need to be updated. This could be done through an addendum to the existing contract, a side letter, or by entering into a new version of the contract that supersedes the current one and includes the required terms.
Businesses with large numbers of supplier and subcontractor relationships should factor this into their planning now, as the volume of contract amendments required before the go-live date could be significant.
What should creative businesses be doing now?
Be aware that we’re still expecting details of how and when the changes will be implemented, revised right to work guidance and a public awareness campaign for businesses. Based on the draft employer’s guide to right to work checks and draft code of practice on preventing illegal working, you should:
- Map your subcontracting arrangements. Identify where your business is contracted to provide services to a third party and then subcontracts delivery.
- Prioritise high-volume or high-risk supplier relationships – particularly those involving individuals rather than large corporate suppliers with established compliance programmes.
- Review and update contracts to include the prescribed terms before 1 October 2026. Remember: this includes existing contracts that will still be in force on or after that date, not just new ones. An addendum, side letter or superseding agreement may be needed.
- Consider template clauses for standard supplier and subcontractor agreements that can be rolled out at scale.
- Coordinate across teams. This is not just an HR or immigration issue. Procurement, legal, business affairs, operations and contract management all need to understand the new requirements.
- Take legal advice early, particularly for complex supply chains, platform models, arrangements involving substitution, freelancer and influencer engagements, and any situation where it is not clear whether an arrangement falls inside or outside scope. The boundary between a genuine business-to-business services arrangement and an engagement that is "in substance" personal service is fact-sensitive and may require careful analysis.
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.
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