Right to Work Checks and EU Nationals

Right to Work and EU Nationals | HR Solutions

UK employers have a responsibility to prevent illegal working, and in order to do so, they should conduct right to work checks before employing someone.  Preventing illegal working helps to deter tax evasion, malpractices with the National Minimum Wage and exploitative working conditions, including modern slavery.

Guidance from the Home Office states that by conducting right to work checks as set out in their guides…

“ … you will have a statutory excuse against liability for a civil penalty in the event you are found to have employed someone who is prevented from carrying out the work in question by reason of their immigration status. This means that if we find that you have employed someone who does not have the right to do the work in question, but you have correctly conducted right to work checks as required, you will not receive a civil penalty for that illegal worker.”

As of January 2019, right to work checks have changed in three key ways:

 

1. Accept short birth certificates

A short birth certificate issued in the UK (in combination with evidence of the NI number) is now acceptable as evidence of the right to work in the UK (previously only the long versions were acceptable).

 

2. EU settlement status

A ‘settled’ or ‘pre-settled’ status issued under the EU settlement status scheme can now be given as evidence of the right to work in the UK. This may be viewed digitally via the new online checking service (see below).

There is currently no obligation on employers to check whether an EU citizen has an EU settlement status, as right to work checks will continue as normal until 30th June 2021, or 31st December 2020 if the UK leaves the EU without a deal. Irish citizens do not need to apply but they may do so if they wish to. EU citizens with indefinite leave to enter or remain do not need to apply, nor do they if they have obtained British or Irish citizenship.

View our recent webinar which looks into the current and future right to work of EU nationals, the settlement scheme and future sponsorship arrangements.

 

3. Online right to work checks

A new method for right to work checks have been introduced which means there are now two ways of checking the right to work: a ‘manual check’ or an ‘online check’.

The web address for this is: https://www.gov.uk/view-right-to-work

Currently, online checks may only be conducted for those with a:

  • Biometric residence permit
  • Biometric residence card
  • Status issued under the EU settlement scheme.

To enable the employer to view someone’s right to work online, individuals must provide their date of birth, and the ‘share code’ generated for them by the Home Office’s online right to work checking service. A response screen is generated which includes the individual’s photograph and details of their right to work. Either a digital or hard copy print out of this must be retained by the employer, along with a statement of the date the check was made (this can be a digital date stamp). This can then be used as a statutory excuse against a claim for failing to prevent illegal working. These checks must only be carried out with the individual’s permission.

Where permission is not given, a manual check must be conducted instead.

For further details, view the Home Office’s latest employer guide.

(Note: this new online service is different from the Employer Checking Service.)

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