No Deal Brexit and Criminal Record Checks

11.03.19

Before hiring a new employee, employers often carry out background checks – verifying the candidate’s identification documents, their references and qualifications, their credit history and, for some positions, their health status. For certain jobs, for example for work with children or vulnerable adults, employers are also required to run a criminal record check via Disclosure Scotland or, for England and Wales, the Disclosure and Barring Service or AccessNI for Northern Ireland.

The role of the EU

As an EU Member State, the UK has access to a range of EU security tools, including the European Criminal Records Information System (“ECRIS”). ECRIS was established in 2012 in order to improve the exchange of information on criminal records throughout the EU.

If a UK authorised agency carries out a criminal record check on an EU/non-UK national, be it for criminal proceedings or for public protection purposes, the UK’s Central Authority for the Exchange of Criminal Records (“UKCA-ECR”) sends, via ECRIS, a request to the EU Member State in question for disclosure of previous convictions.

Connectivity to ECRIS not only provides information about non-UK/EU nationals but also UK nationals: if, for example, a UK national has been convicted of an offence in another EU country, this will be, via ECRIS, automatically passed to the UKCA-ECR and, if deemed “recordable”, it will be added to the competent Police database (Police National Computer for England/Wales, Scottish Police Services Authority, and/or the Police Service in Northern Ireland).

And if there is a No Deal Brexit?

If the UK leaves the EU on 29 March 2019 without a deal, criminal record checks of EU national candidates applying for jobs in the UK might take much longer than they do now. Equally, the UK would lose access to the automatic updates on EU offences of UK nationals via ECRIS. As a result, these checks might not disclose all relevant convictions.

According to the National Police Chiefs’ Council, UK criminal record checks with other EU Member States take six days on average at the moment, whereas the average outside the EU is 66 days. A no-deal Brexit could mean similar delays for the UK/EU information exchange. There are alternative tools but these are not considered as efficient or effective as the EU tools currently in use, ECRIS in particular.

What employers need to know

Employers need to be aware of this possible outcome of a no-deal Brexit.  If offer letters or regulatory rules stipulate that the checks have to be complete before an employee can start, how will you manage the impact on recruitment processes?  Is it possible to have new employees start work subject to completion of the checks? Do you know how to respond if they do not come back clear?

The same issues might arise with applications under the EU Settlement Scheme: here, EU applicants need to declare any criminal convictions and undergo checks against UK and overseas criminality and security databases. Employers are required by law to check an applicant’s eligibility to work in the UK. You can find the full briefing on “Settled status: what do employers need to know?” here.

Please do also visit our Brexit Hub for regular updates on Brexit related issues, including our checklist of key questions businesses should be asking themselves to assess how ready they are for Brexit.