Recent changes to right to work checks regarding the EU Settlement Scheme
You need to be aware that those who have applied for and received a ‘pre-settled’ or ‘settled’ status under the EU Settlement Scheme are currently able to use this as evidence of their right to work if they wish.
This is viewable online, by going to www.gov.uk/view-right-to-work. All you will need is their date of birth and their ‘right to work share code’, which they were provided with by the Home Office when they registered for the online checking service.
You may also be aware that those who arrive in the UK post exit date will be able to apply for Euro TLR (European Temporary Leave to Remain) which gives successful applicants the right to work in the UK for 3 years. They may also choose to use this as evidence of their right to work in the UK in the same way.
Although it is possible to use these as evidence of the right to work now, normal right to work checks will continue until at least 31 December 2020. Therefore, individuals should not be treated less favourably on the basis of whether they are able or willing to demonstrate their right to work using the new online checking service. Employers may encourage and support the use of an online check, but they must not mandate online checks.
In a no-deal scenario, from 1 January 2021, EU citizens will need to show either pre-settled / settled status, Euro TLR or a visa under the new immigration system. Therefore, an EU citizen who begins work after 1 January 2021 will have to show one of these as proof of their right to work.
Employers will not have to make retrospective checks for existing employees. However, those persons who do not have the correct documentation by 1 January 2021 will personally risk prosecution for the offence of illegal working.
(Remember, those who have indefinite leave to enter or remain, or have British or Irish citizenship, will not need to provide you with any further evidence of their right to work post-Brexit.)
It has been confirmed that when free movement ends and with effect from 1 January 2021 (in a no-deal scenario), EU workers who do not have a pre-settled or settled status or a Euro TLR visa will need to hold a valid visa issued under the new immigration system.
Under Theresa May’s government, the proposal for the new system was to issue visas on a skills basis, which would require employers to sponsor EU citizens. The government began to look at ways in which they can minimise bureaucratic red tape in the current tier 2 visa system for skilled non-EEA nationals, as part of what is being called a ‘lighter touch’ approach for the future. (Currently, employers face significant fees and can experience delays of up to several months before an individual can join them.) Plans include:
- To remove the cap on the number of work visas
- Widening the skill threshold to include A-level equivalent qualifications
- Remove the labour market test.
In September 2019, the proposal for the new system changed to become a point-based system, in the Australian style. In the Australian immigration system, points are awarded for desirable traits, based on factors such as: age, aptitude for the English language, skills and job offers. Currently, it has not been confirmed how this system would work in the UK and nor what this would mean for employers – but it may still mean that some employers may need to become sponsors in order to employ certain EU nationals in the future, to help them achieve the requisite points.
Further Brexit and HR Guidance
Visit our Brexit Business Preparation website page for more suggestions on how an organisation as a whole may identify the potential impact that Brexit could have on its operation; as well as get practical HR and employment legislation guidance on how businesses can get ready for Brexit.