Free movement under EU law ended on 31 December 2020 and there are now different immigration rules applicable to EU, EEA and Swiss nationals (European nationals) depending on whether the European national first arrived in the UK before or after 31 December 2020. These changes also impact right to work checks.
There is a grace period for employers until 30 June 2021 during which an employer is able to establish a statutory excuse against a civil penalty by simply checking a European national's passport or national identity card. The Home Office has recently issued further guidance on right to work checks on European nationals employed on or before 30 June 2021 and has published a factsheet for employers. We consider this in more detail below.
European nationals and family members who entered the UK before 11pm on 31 December 2020
In most cases these individuals will need to apply for pre-settled or settled status under the EU Settlement Scheme (the Scheme) in order to continue to live and work in the UK long term. Individuals who have been "continuously resident" in the UK for at least five years should be eligible for settled status. If the individual has been in the UK for less than five years, they should be granted pre-settled status. The deadline for applying under the Scheme is 30 June 2021.
European nationals and family members who arrive in the UK after 11pm on 31 December 2020
Importantly, these individuals will not usually be able to apply under the Scheme. In order to live and work in the UK they will need to apply under the new Immigration Rules.
Right to work checks
We recommend that employers carry out right to work checks before an employee starts work. These checks are important because they mean that, provided the check is undertaken correctly before the employee starts their employment, the employer should have a statutory excuse against a civil penalty of up to £20,000 if it is later discovered that the person is working in the UK illegally. Further, if employers are not carrying out right to work checks correctly the Home Office may take compliance action if the employer is a sponsor. Employers should consider how they are approaching right to work checks for European nationals now that free movement has ended.
The updated guidance
The key points are:
- Right to work checks for European nationals will not change until after 30 June 2021, when the grace period ends. Until then, for the purposes of right to work checks, European nationals can use their passport or national identity card to evidence their right to work. Employers should however be aware that there is a risk that the individual may not, in fact, have the right to work if they first arrived in the UK after 31 December 2020. Please see below for further information.
- During this grace period employers cannot refuse to accept a passport or ID card from European nationals or insist they use the Home Office's online checking service to prove their right to work i.e. as evidence that they have applied for status under the EU Settlement Scheme. However, the Home Office clarifies in this guidance that employers may invite the individual to provide further evidence of their right to work.
- There is no mandatory requirement for employers to undertake retrospective checks on European nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with right to work legislation and in line with the guidance. However, as set out below, employers should be aware that the situation may be different if the employer is knows or ought reasonably to have known that the person does not have the right to work in the UK.
- We recommend that employers encourage both prospective and existing employees to let their employer know if they have applied under the Scheme and to inform their employer once the application has been decided. Indeed, the guidance states that employers can "invite those who already have status under the EU Settlement Scheme to evidence their right to work using the Home Office online service". If the employee has been granted pre-settled status we recommend that you diarise when that status is due to expire, as well as adding a reminder to contact the individual at least three months before the expiry date to remind them to apply for settled status.
- The guidance recognises that some employers may wish to conduct retrospective checks and does not prohibit this provided these checks are carried out in a non-discriminatory manner.
- Right to work checks for European nationals will change from 1 July 2021, and evidence of UK immigration status will be required using the Home Office's online service, subject to limited exceptions. New guidance is due to be published before 1 July 2021.
Employers cannot force their existing EU national workforce to submit applications under the Scheme or to provide evidence that they have obtained settled or pre-settled status. However, employers can certainly encourage them to do so and provide information and support to them on how to apply. As above, we also recommend employers encourage employees to inform them once they have been granted settled or pre-settled status and encourage them to provide evidence of this.
You should also emphasise to your European workforce that they must ensure they apply for pre-settled or settled status by 30 June 2021. If they do not do so it is likely they will be in the UK illegally after 30 June 2021 and as an employer you may not be able to continue to employ them after that date.
Employees starting work on or after 1 January 2021
Although the current Home Office guidance states employers are not expected to differentiate between European nationals who arrived by 31 December 2020 and those who arrived on or after 1 January 2021, employers should take care when hiring European nationals starting work before 30 June 2021. By just looking at a passport or national identity card you will not know if the individual originally entered the UK before, on or after 31 December 2020
When carrying out the right to work check, an employer cannot just "blindly" copy a document and rely on this if the employer is aware that the individual does not actually have the right to work. Where an employer knows or has reasonable cause to believe the individual does not have the right to work, in the worst case scenario they can be the subject of criminal prosecution, as well as being issued with a civil penalty. For example, if there is an email on the file showing that the employer knows the European national arrived in the UK for the first time after 31 December 2020, simply copying the passport or national identity card will not in our view provide a defence against prosecution or a statutory excuse against a civil penalty.
At the very least we suggest employers ask European nationals when they first arrived in the UK to work out if this was before or after the end of the Brexit transition period. If they arrived after 31 December 2020 we recommend you ask for and obtain evidence of their immigration permission giving them the right to work. Otherwise it is likely you will need to sponsor them. If they arrived before 1 January 2021 you should encourage them to provide details of their settled or pre-settled status if they have already applied or remind them they must apply by 30 June 2021. Employers can use the online checking service to confirm that an employee or applicant has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, employees and applicants do not have to agree to share their status using the online checking service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.