As you may be aware, the Government has introduced new rules for employers on conducting right to work checks now that the 30th June deadline for applications under the EU Settlement Scheme has passed.

Following on from our previous article, we outline below how right to work checks should be conducted from 1 July 2021, as well as how to deal with employees who failed to apply under the EU Settlement Scheme.

Background to the changes

Under the UK’s new immigration regime which was introduced from 1 January 2021, EU and Swiss nationals no longer have an automatic right to work in the UK.

Please note that Irish citizens are an exception, as they retain indefinite leave to live and work in the UK.

The government allowed a ‘grace period’ from 1 January 2021 to 30 June 2021 during which right to work checks remained the same so that EU nationals already residing in the UK could apply under the EU Settlement Scheme.

Now that the grace period has ended, an EU national’s passport or identity card is no longer a valid form of documentation to evidence their right to work in the UK. 

To have the right to work in the UK, EU nationals must:

  • Have settled or pre-settled status under the EU Settlement Scheme;
  • Be sponsored under the points-based immigration system; or
  • Have another status giving them the right to work.

New right to work checks for EU and Swiss nationals

The government has issued detailed guidance for employers on how right to work checks should be conducted from 1 July 2021.

The right to work check process and the list of approved documents that can be provided remain the same for British and non-EU foreign nationals.

However, as explained above an EU national’s passport/identity card is no longer a valid form of documentation for right to work checks so other evidence of their immigration status is required.

Existing EU national employees

Employers are not legally required to conduct retrospective right to work checks on EU national employees they have employed before 1 July.

Provided you carried out a prescriptive right to work check in line with Home Office guidance at the time, you will not face any liability for illegal working if you do not now check their status under the EU settlement scheme.

For example, if you hired an EU national before 1 July and conducted a compliant right to work check by checking their EU passport, you will not be penalised if the employee has failed to apply under the EU Settlement Scheme before the deadline.

Employers are free to conduct retrospective checks if they wish but doing so carries a significant risk of race discrimination if EU employees are singled out.

It will be difficult to carry out retrospective right to work checks in a non-discriminatory way without administering checks across the entire workforce, which would incur a significant administrative burden. 

Due to the inherent discrimination risk and the absence of a legal obligation to do so, there is little incentive to conduct retrospective right to work checks.

New EU national employees

When employing EU nationals from 1st July, you should use the Home Office right to work online service to check their status under the EU Settlement Scheme.

To do this you will require the employee’s date of birth and their right to work share code which allows you to check their immigration status online:

  • Settled status – this gives the employee a permanent right to work in the UK.
  • Pre-settled status – the employee has a time-limited right to work in the UK, so you will be required to conduct a follow up check before this status expires.

Conducting this online right to work check will protect you against liability for illegal working, provided you follow Home Office instruction regarding subsequent checks if required.

It may be that the individual applied under the EU Settlement Scheme before the 30th June deadline, but their status has not yet been determined.

EU nationals who have applied under the scheme and whose status is pending continue to have the right to live and work in the UK until they receive an outcome.

In these circumstances you should input the individual’s share code to the online service which should show you their Certificate of Application, proving their outstanding application under the Scheme and providing evidence of their temporary right to work.

If the individual does not have a Certificate of Application, they may have an acknowledgement letter/email.

In this case, you should request a right to work check on this document from the Employer Checking Service (ECS) and retain a copy of the letter/email as well as the response from the ECS as evidence of your right to work check.

If an EU national cannot provide any of these documents and has not applied under the EU Settlement Scheme, they must provide evidence of another status giving them the right to work in the UK, such as being a dependant or being sponsored under the points-based system.

Employees without status under the EU Settlement Scheme

If an EU national does not have the right to work under the EU Settlement Scheme or any other route, the approach you should take will depend on whether they were employed by you before 1st July.

Employing EU nationals from 1st July

If an EU national you are planning to employ from 1st July onwards does not pass the online right to work check service and cannot provide you with any of the approved listed documents set by the government as evidence of their right to work in the UK, you should not employ them.

If the individual may be eligible to apply under the EU Settlement Scheme, you should encourage them to do so but you should not employ them until they have valid evidence of their right to work in the UK.

EU nationals you employed prior to 1st July 

If you discover that one of your EU employees has not applied under the EU Settlement Scheme and therefore no longer has the right to work in the UK, you should encourage them to make a late application as soon as possible.

Late applications to the EU Settlement Scheme are permitted if the individual has a reasonable excuse for missing the deadline, such as medical incapacity or extenuating personal circumstances.

The government has introduced a transitional system, whereby until 31 December 2021 you can continue to employee EU nationals who started working for you before 30 June 2021, provided they submit a late application to the EU Settlement Scheme.

Government guidance on this system explains that:

  • You should ask the employee to apply under the EU Settlement Scheme within 28 days and provide you with their Certificate of Application or email of acknowledgement as soon as they receive it.
  • Once you receive the certificate or confirmation email, you should approach the ECS who will provide you with a Positive Verification Notice (PVN), giving the employee temporary right to continue working in the UK for 6 months pending the outcome of their application.
  • You should conduct a follow up check before the PVN expires and the ECS will either provide you with the individual’s status under the EU Settlement Scheme or a further PVN.
  • If the employee’s application is unsuccessful or they fail to apply within 28 days, you should terminate their employment in line with company procedure, as they will no longer have the right to work in the UK.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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