As UK employers, it is likely that you will, at some point, come across migrants with digital UK immigration status only. That is to say, individuals without physical UK immigration documents. This is likely to become something regular. So who will likely get digital status only, and how do they demonstrate their right to work in the UK?
Who has digital status?
The first group of people are EEA and Swiss citizens who have been granted Settled or Pre-settled Status under the EU Settlement Scheme. Non-EEA/ Swiss family members will still be issued physical documents.
The second group of individuals are EEA and Swiss citizens applying for a visa outside the EU Settlement Scheme, as well as people who apply for a British National (Overseas) visa, and they have used the "UK Immigration: ID Check" app. If they don't use an app, and attend a biometric enrolment appointment, they should be issued physical documents
We expect that in the future, more groups of people will be granted digital UK immigration status only, although it would not be surprising if this attracts further court action e.g. R (the 3million Ltd) v Secretary of State for the Home Department  EWHC 1159 (Admin). This case was concerned about digital only status, but did not get anywhere as the claim was "premature" i.e. before 1 July 2021 when EEA/ Swiss citizens could still rely on their physical passport/ ID cards to prove their right to work in the UK. Watch this space for news on any further litigation in this area...!
Demonstrating right to work
Where an individual has physical UK immigration documents, the document itself can be used to prove they have a right to work in the UK. If the individual chooses, they can also send you a share code which they can obtain from here.
Where a migrant only has digital UK immigration status, for example, under the EU Settlement Scheme or having used the app, they can obtain a share code from a similar but different link here.
As an employer, you will need to use the UK Government's "View a job applicant's right to work details" website to check an individual's right to work. This website can be used regardless of which website the individual obtained their share code from, but you will also need their date of birth.
Whether you satisfy yourself that an individual has a right to work by examining physical documents (or the temporary COVID related checks), or using the UK Government's websites, you ought to retain compliant evidence to help you establish a statutory defence against a civil penalty of up to £20,000 per illegal worker. It is also advisable that you take steps to minimise discrimination. For example, British citizens cannot obtain a share code whatsoever, and not all EEA/ Swiss citizens will have status under the EU Settlement Scheme.
OTHER ITEMS TO NOTE
Other than looking at digital UK immigration status and how these individuals can demonstrate their right to work, changes and immigration related news/cases you might want to take a note of include:
- the "Nationality and Borders Bill" recently had its second reading in the House of Commons – it seeks to "tidy up" some gaps in the law, though there is some concern that in its current form, it could criminalise actions taken by organisations such as the RNLI
- there is NEW right to work guidance which took effect from 1 July 2021 – it is advisable that you carefully review as soon as possible and ensure the new guidance is followed
- retrospective right to work checks do not need to be undertaken on EEA citizens if they entered into employment before/ on 30 June 2021, subject to compliant checks having been carried out in line with the relevant guidance at the time. If you do identify EEA citizens in your workforce who have applied to the EU Settlement Scheme and don't have another form of lawful immigration status, you might be able to take advantage of the transitional measures until 31 December 2021
- there will be a tailored version of the Skilled Worker visa for people displaced from Jordan and Lebanon
- Temporary right to work checks in light of the current pandemic is currently due to end on 31 August 2021
- the UK Government published its UK Innovation Strategy last week and intend to introduce a new High Potential Individual route which would allow individual to come to the UK without a job offer; as well as a scale-up route allowing individuals to apply through a fast-track verification process
Originally published 23 July 2021
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.