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9 Questions on New UK Right to Work Checks

From 1 July 2021, new Right to Work checks must take place for businesses in the UK.

The departure of the UK from the European Union and the ending of the free movement of people has led to significant changes to how we recruit in the UK. This article looks at these changes and reviews nine common questions from UK employers on what they must do to recruit, following the changes which were implemented on 1 July 2021.

Where we refer to EU nationals, this includes EEA and Swiss nationals.

1. What is the EU Settlement Scheme?

This scheme provides EU, EEA, and Swiss nationals (who were residing in the UK as of 31 December 2021) with either pre settled or settled status. Settled status grants them the ability to live and work in the UK for as long as they like and can apply for citizenship after 12 months. Pre settled status allows for them to live and work in the UK for a further five years from the date on their Home Office decision letter. A further application to gain settled status can then be made after they have lived in the UK for five years in a row.

2. What happens if EU nationals arrive in the UK to work from the 1 January 2021?

Those EU nationals arriving in the UK on or after 1 January 2021 require a visa to work (where they do not have pre settled or settled status via the EU settlement scheme). The visa is gained through the newly introduced points-based immigration system, which also came into effect from 1 January 2021.

This new immigration system aims to treat EU and non-EU nationals equally and the Government have taken the opportunity to review and streamline the existing types of visas, which previously were only available to non-EU nationals, making them accessible to all.

3. How does the applicant evidence their immigration status and right to work in the UK?

The Government have developed the new immigration system in such a way that there has been a six-month transition period. What this has meant, is that EU nationals have been allowed to evidence their immigration status in the same usual way by using their passports and national identity cards between the period 1 January and 30 June 2021. This is regardless of whether they arrived in the UK before or after the key date of the 31 December 2020 (when the free movement of people ended).

However, this grace period ended on 30 June 2021. From 1 July 2021 the new points-based immigration system is in operation and therefore, UK employers right to work checks will need adapting.

4. What are the right to work checks from 1 July 2021?

EU nationals who have received immigration status via the EU settlement scheme will have received their status digitally, meaning that any UK employer will be able to verify their entitlement to work in the UK via the Home Office’s ‘right to work service’. It will no longer be lawful for an employer to check their passport or national identity card because this will only evidence nationality, rather than an immigrations status allowing them to work.

To undertake a digital check, the applicant will provide their share code and date of birth which will enable the employer to conduct the online check. By doing so, an employer will obtain a statutory excuse against liability for a civil penalty for illegal working.
EU nationals coming to work in the UK from 1 July 2021 will need to obtain immigration status under the points-based immigration system, just as non-EU nationals. To prove their right to work in the UK, a share code will be provided by the applicant along with their birth date so that checks can be undertaken with the Home Office via their online service, or in the case of those with a biometric residence permit, this would be a manual check. Both checks will ensure organisations obtain a statutory excuse against liability for illegal working.

Irish citizens will continue to have unrestricted access to work and so they will be able to evidence their right by using their Irish passport or Irish passport card, Irish birth, or adoption certificate together with an official document providing their NI number and name.

5. Will follow up right to work checks be necessary?

Those EU nationals granted only with pre settled status will have a defined period in which they can legally live and work in the UK. It is therefore a requirement for an employer to conduct a follow up right to work check. The Home Office online service will be able to advise when this follow up check is to take place.

6. What if an employee informs me, they have applied to the EU Settlement Scheme but as of 1 July 2021 they are awaiting the outcome of their application?

The Home Office have confirmed that in this scenario, the individual will be able to continue to live in the UK as they do now and maintain a legal right to work until their application has undergone the full procedure, including any appeals process and they have their final determination.

Those in this position will be issued with either an EU Settlement Scheme Certificate of Application, or an EU Settlement Scheme application acknowledgement email, which in most cases will be issued digitally. This would mean the applicant being able to evidence their right to work by using the online checking service. Where these items are not provided digitally, then an employer must request a right to work check from the Employer Checking Service and make a copy of their certificate of application or email receipt to provide a statutory excuse against liability for illegal working.

Exceptions

There are some exceptions to the right to work rules for EU nationals from 1 July 2021 and so we recommend you review the Government’s guidance ‘An employer’s guide to right to work check’ to understand if and how these may affect your organisation and recruitment.

7. What about EU nationals with indefinite leave to enter or remain?

Those EU nationals with indefinite leave to enter or remain do not need to apply to the EU Settlement Scheme. This means that they will be able to prove their right to work in the same way as non-EU nationals who do not have immigration status, and this can be conducted digitally. Employers can carry out manual checks of their home office documentation, which could be an endorsement within their current passport confirming indefinite leave to enter/remain/no time limit, or where they have a current biometric residence permit, carry out a manual check. The biometric residence permit can also be used to complete an online right to work check. Either of these methods will provide the employer with a statutory excuse against liability for illegal working.

8. Do we have to check our existing EU national employees right to work status?

The Government have explicitly stated in their guidance that there is no requirement for an employer to retrospectively check the immigration status of their EU national employees who joined their employment on or before the 30 June 2021. Where the employer completed the correct right to work procedures in accordance with the Home Office advice that was in place at the time the EU national joined the organisation, this will constitute a statutory excuse against the liability for illegal working. This means that an employer must not require an employee to demonstrate their right to work again (except in the case of those with pre-settled status as discussed above) however, this does not mean that checks cannot be carried out if the employee voluntarily offers to show their employer their immigration status.

9. What if an EU national does not have the lawful right to work in the UK from 1 July 2021?

The Government have made it clear that employers will still have a continuous statutory excuse against liability for illegal working if initial right to work checks were conducted as set out in legislation and their own right to work guidance that was in place at the time of recruitment. So, if you have any EU nationals already employed within the organisation, the fact that the correct checks were carried out at the time of them being employed is sufficient.

However, from 1 July 2021, where an EU national applies to an organisation and they do not have the right to work in the UK, they cannot be employed.

For an EU national already employed within the organisation, if they have reasonable grounds for missing the deadline for the EU Settlement Scheme, then they can be given a further opportunity to apply. The Home Office have published guidance in which it sets out a non-exhaustive list of what may constitute reasonable grounds for a personal failure to meet the deadline of 30 June.

Furthermore, the Government have introduced further flexibility by introducing a new process that organisations can follow up until 31 December 2021 where they have identified an EU national who has not applied to the EU Settlement Scheme by the 30 June 2021 and therefore fails to have the proper immigration status.

An organisation need not end the employment where the employee was in the organisation’s employment prior to 30 June 2021, but the organisation should:

  1. Advise the individual they must make an application to the EU Settlement Scheme within 28 days and provide the organisation with a certificate of application
  2. On receipt of a certificate of application, the organisation must contact the Home Office employer checking service to confirm the employee has applied.
  3. The company will be provided with a positive verification notice in the event the employee has applied. A copy of the positive verification notice and the certificate of application must be kept as evidence in providing the organisation with its statutory excuse against liability for illegal working for a period of six months.
  4. The positive verification notice expires after the 6 months; therefore, the organisation must undertake a follow up check with the employer checking service to maintain their statutory excuse against liability for illegal working.
  5. The individual may be given their immigration status before the expiry of the positive verification notice, but where they have not, a further positive verification notice may be given for a further six months whilst the application remains pending
  6. In the case where the application is refused, then an organisation must end the employment. We would advise you seek HR advice and guidance if you are in this position.

EU nationals who are working without immigration status, will be given a 28-day notice by the Home Office, before action being taken. This will therefore provide individuals who may be eligible to apply to the EU Settlement Scheme with the opportunity to make a late application whilst demonstrating any reasonable grounds for missing the deadline.

Further Government Support:
• Home Office: An Employer’s guide to right to work checks
• Employer Helpline: 0300 790 6268, Monday to Thursday 9am to 4.45pm and Friday 9am top 4.30pm

If you require HR advice or more information on the topics discussed above, Contact Us and a member of our team will be able to support you.

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