Costly right to work check errors revealed in Home Office survey

A new Home Office survey has been published which sends an important message to employers responsible for conducting right to work checks, namely that whilst most understood the basic requirement to carry out right to work checks, knowledge of the key details is often lacking and mistake are widespread. With the Home Office ramping up enforcement activity it’s a message employers need to take on board. We’ll speak to an immigration lawyer about the findings.

All employers in the UK have the responsibility of conducting Right to Work checks when deciding to employ someone, to ensure only those who are legally entitled to work in the UK can access employment, as well as to establish a statutory excuse against penalties incurred for illegal working. This research, carried out by Verian on behalf of the Home Office and published on the government’s website, sought to understand how employers’ understanding, implementation of checks, and decision making, affected compliance with regulations. To answer these research questions Verian conducted a quantitative mixed mode survey (telephone and online) with 2,152 businesses, as well as 30 follow-up in-depth qualitative interviews. It found that 89% of employers knew the checks were a legal requirement, but far fewer understood what those checks actually involve. Most are relying on manual checks, with fewer using digital options like the Home Office’s online service or certified Identity Service Providers.

Personnel Today has covered the story and they highlight who employers think has responsibility for right to work checks. So, whilst 89% saying that all employers in the UK had a responsibility to carry them out there was a serious misunderstanding about where responsibility lies. 62% thought recruitment agencies had this responsibility, 48% said the Home Office, 46% said employees themselves and 44% subcontractors.

And what about the most common mistake? According to the survey, it’s employers relying on a driving licence as proof of right to work – 62% of employers said they did that.

So let’s get a view on this. Earlier I caught up with immigration expert Maria Gravelle who joined me by video link from Edinburgh:

Maria Gravelle: “So this was a survey done by the Home Office on how well employers and organisations know the Right to Work guidance and there were some findings that I think has made the Home Office raise a few eyebrows. So some of them are not too surprising, and it is errors that we do see quite regularly as well, and the main one is accepting driving licences. Driving licences are not, nor have they ever been, acceptable documents from a right to work perspective and the reason is simply because they don't confirm the person's nationality or their immigration status. So, they are as useful as a student card to be honest - you could have a UK driver's license with a UK flag on it but that doesn't mean that you are a British citizen, it doesn't mean anything in terms of your citizenship. So accepting driver licences is definitely a common mistake that we see. I think that possibly comes up because many organisations will also have their own identity and background checks on new hires and, perhaps, driving licences are acceptable for those purposes but the position remains, and has always been, that they are not acceptable from a right to work check perspective. So if you've got a British citizen, or an Irish citizen, you would be looking for a copy of their passport and if they don't have a passport, what you would need is a copy of their birth certificate accompanied by some kind of evidence that they have a national insurance number. This most commonly does come up for British citizens, and it's quite helpful to point out that the risk that arises from accepting a driving licence really depends on whether the person is or is not an illegal worker. So if you, as an organisation, think, oh no, I've accepted a number of driving licences over the years, let's go back and check these individuals and audit them and it turns out that they are all British citizens then you've been very lucky, but you're not going to be liable for a civil penalty in that case because you haven't actually employed any illegal workers, but you have been very lucky because you could have done. So it's the fact of opening up your organisation to that level of risk which is the problem here. So it's very important to check the list of documents that you are able to accept for right to work check purposes and making sure that you are taking one of the documents on that list. If you do have any doubt, you're welcome to contact Pinsent Masons, or the Home Office guidance is quite robust in this area in terms of what kind of birth certificate you can accept, for example. So there is guidance available, and it's worth double checking before accepting something.”

Joe Glavina: “The Personnel Today article mentions the Home Office increased enforcement levels, and how we’re seeing more audits and raids. They ask the question: what can HR teams do to help their organisation to be audit proof going forward into 2025. What’s your answer to that, Maria? What help are clients asking for?” 

Maria Gravelle: “So the main areas where our clients are reaching out to us for support with this is mostly around training for people who have responsibility for this area, and also mock audits. So ensuring your organisation is prepared if the Home Office come knocking at your door and one of the best ways to do that is actually just to run a mock audit. That's something that we are instructed to do with our clients, where we'll interview the key personnel, we'll speak to the HR team, and we'll have a look at a couple of files in the same way that a Home Office officer would and make some recommendations on what could be improved. Another way to ensure that your HR team is prepared for this and upskilled, is to do some training. So again, that's something that we're often instructed to run, training courses, webinars, explaining what the sponsorship duties are, what documents you should be holding for sponsored workers, and then some case studies about what should you have in this situation versus this situation? One of the key issues that arises when a compliance visit is called is, unfortunately, key personnel that don't have enough experience of the role, or don't have enough knowledge of the role that they're supposed to do. They might be a level one user, but they might very rarely actually use the Sponsor Management System, or they might be an authorising officer but on the day to day they don't really have that much involvement with the sponsorship process, and so when the Home Office come to start asking them questions they just simply don't know the answers and that's quite a common issue that we see with Home Office compliance visits. So ensuring that your key personnel are upskilled is a really important factor. I'd say another important factor is ensuring that your right to work documentation is really robust, and up to date, not just for your sponsored workers but for all of your employees. So another area that we are often instructed on is right to work check policies, setting out the procedure for HR personnel or, particularly if you've got line managers who are doing right to work checks, having a written policy explaining step by step what they're supposed to do can be really helpful.”

That Home Office survey was published on 1 April and is available from the government’s website and we’ve included a link to it in the transcript of this programme. We’ve also included a link to the Personnel Today article which is a useful read too.

- Link to Home Office survey: ‘Employer awareness of, and self-reported compliance with, Right to Work checks’

- Link to Personnel Today article: ‘Home Office reveals employers’ costly right-to-work mistakes’