On 17 March 2021 the Home Office issued new right to work check guidance for employers. This provides welcome confirmation of the rules regarding right to work checks for EEA and Swiss nationals during the grace period for applications to the EU Settlement Scheme (EUSS), which runs from 1 January – 30 June 2021. There is also a downloadable factsheet.

These documents confirm that during the grace period it remains acceptable for an EU national to simply show their EU passport or ID card and there is no requirement for an employer to check that an application to the EUSS has been made, or alternatively that a visa has been obtained.

Further, the Home Office has confirmed that there will be no requirement for employers to go back retrospectively and check that hires prior to 30 June 2021 have applied to the EUSS.

If someone who should have applied to the EUSS has failed to do so by the deadline they will then be here unlawfully and would fail any new right to work check from 1 July 2021. There has been some confusion for a while now over what approach the Home Office will take to enforcement. The factsheet states that: "Where someone is eligible for status under the EUSS and has reasonable grounds for missing the application deadline, they will be given a further opportunity to apply before enforcement action is taken. As in other areas of the EUSS, we will take a flexible and pragmatic approach, but they will not be able to work until they have resolved their status."

The Home Office acknowledges that some employers may wish to conduct retrospective checks "to ensure the stability of their workforce". If you choose to do so, the guidance makes clear that you must do so in a non-discriminatory manner and in accordance with the code of practice on avoiding discrimination while preventing illegal working.

Temporary arrangements for remote right to work checks during the pandemic are continuing. We are still waiting for the government to announce when employers will be required to go back and do retrospective in person checks. The factsheet mentions this and explains the Home Office is undertaking review of the process.

The review will "consider the impact and potential for allowing a longer period for undertaking retrospective checks as well as the implications if employers were not required or able to complete retrospective full right to work checks. The outcome of the review is expected early this year". As we are already at the end of March, it remains to be seen how much longer this review will take.

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