The Home Office has published the long-awaited guidance for employers on right to work checks that will apply from 1 July 2021. It confirms that retrospective checks are not required for those EU, EEA and Swiss citizens who commenced work before 1 July 2021. Employers should ensure that their right to work procedures are updated in line with the revised guidance. 

What was the position until 30 June 2021?

EU, EEA and Swiss citizens were given 6 months after the end of the Brexit transition period (from 1 January 2021 until 30 June 2021) to apply through the EU Settlement Scheme if they wanted to continue living and working in the UK (known as the 'Brexit Grace Period').

During this period employers were able to continue to accept an EU, EEA or Swiss passport as evidence for right to work check purposes. Employers were not expected to differentiate between those who entered the UK before or after 31 December 2020 (meaning that they could have inadvertently recruited employees who did not have the right to work in the UK).

What has changed from 1 July 2021? 

From 1 July 2021 (when the EU Settlement Scheme application deadline for most EEA and Swiss citizens will have passed) it is no longer acceptable for employers to accept an EU, EEA or Swiss passport as evidence of right to work for new recruits.

What does this mean for employers?

From 1 July 2021, when recruiting EU, EEA and Swiss citizens, employers need to check their right to work using a share code and their date of birth (further details can be found here). Employers can also check original documents instead if the individual does not have a UK immigration status that can be shared digitally (further details can be found here).

It is important that employers are aware of this change, as they can face a civil penalty of up to £20,000 per person if they employ an illegal worker and have not carried out a correct right to work check. 

EU, EEA and Swiss citizens who have pre-settled status will have a time-limited right to work, so a follow up check should be carried out in due course. Individuals who have been granted settled status will have a continuous right to work, in the same way as an individual with indefinite leave to remain.

Are retrospective checks needed for individuals who commenced work on or before 30 June 2021?

Employers do not need to check the status of any EU, EEA or Swiss citizen retrospectively if they were employed before 1 July 2021 (see page 39 of the guidance).

This means that it is possible some employers may have inadvertently recruited and employed individuals who do not have the right to work in the UK. However, provided that the employer carried out a right to work check and does not know that the employee is working unlawfully they will have a statutory excuse against a civil penalty if it transpires that the employee didn’t have permission to work.

What should an employer do if a job applicant due to commence employment on or after 1 July 2021 has applied to the EU Settlement Scheme before the deadline but hasn't received an outcome yet?

EU, EEA and Swiss citizens who have applied for settled or pre-settled status up to and including 30 June 2021 may still be awaiting confirmation of their EU Settlement Scheme application. They will continue to have the right to work until their application is finally decided. From 1 July 2021, if they have an outstanding application they will receive a Certificate of Application or an EUSS email confirming receipt of their application.

Certificates of Application may have been issued digitally and if so, the employer can use the online right to work service to obtain evidence of their right to work immediately provided that the individual gives the employer a share code. 

If an individual only has a paper Certificate of Application or an email confirming receipt of their EUSS application, the employer must use the Employer Checking Service to confirm that they have a right to work. The employer must have the individual's permission to do this and should also retain a copy of the Certificate of Application/ email confirmation on file.

In cases where the employer checking service is used, the Home Office will normally send the employer a Positive Verification Notice to confirm that the individual has the right to work. This will last for 6 months.

What should employers do if an EEA or Swiss citizen they employ hasn't applied to the EU Settlement Scheme in time?

We cover this question in a separate blog.

What right to work checks should employers carry out on frontier workers?

A ‘frontier worker’ is an EU, EEA or Swiss citizen who is resident outside the UK but is economically active (employed or self-employed) in the UK. They have rights under the Withdrawal Agreement, the EEA European Free Trade Association (EFTA) Separation Agreement and the Swiss Citizens’ Rights Agreement (‘the agreements’) to enter the UK and work for as long as they remain a frontier worker. From 1 July 2021, it is mandatory for frontier workers to obtain a frontier worker permit as evidence of their right to enter the UK.

Frontier workers are issued with a frontier worker permit either digitally or physically. Employers can carry out either a manual check or can use the online service, as set out in the guidance to provide them with a statutory excuse against liability for a civil penalty.

The new guidance explains that frontier workers can evidence their right to working a different way to those in Lists A and B of the guidance. Further details are included the guidance and employers can use the employer checking service in order to obtain a statutory excuse in cases where alternative evidence is submitted.

Can employers recruit an EU, EEA or Swiss national after 1 July 2021 if they do not have status under the EU Settlement Scheme?

If an EU, EEA or Swiss citizen begins work in the UK from 1 July 2021, they will need some form of permission to work whether through the EU Settlement scheme or otherwise.

On 6 August 2021, the government announced that individuals who have made a late application to the EU Settlement Scheme and their joining family members will be able to take up new employment while they await the outcome of their application. The Home Office guidance remains that where a job applicant has a Certificate of Application confirming a valid application to the EUSS made on or after 1 July, employers should contact the Employer Checking Service to verify the application. See our additional blog for more details. Individuals who apply from 1 July, and joining family members, will continue to have their rights protected while their application is determined. See more here

Those who do not qualify under the EU Settlement Scheme will likely need a visa under the UK points-based immigration system in order to work or some other visa (subject to the relevant eligibility requirements).

What actions should employers take?

Employers should make sure that all employees involved with conducting right to work checks are trained on the changes and all right to work check processes are updated.

More information 

For more information on any of the issues raised in this blog, please contact Elaine McIlroy, Erin McLafferty, or your usual Brodies contact. 

Workbox by Brodies, our online HR and employment law site, also has useful information on our Checking the Right to Work in the UK and EU Settlement Scheme pages.