Employer Right to Work Checks from 1 July 2021

The Home Office has now updated its guidance for employers on conducting right to work checks.

The full guidance can be found here.

Eligible EEA and Swiss nationals who were present in the UK before the end of December 2020 have been able to apply under the EU Settlement Scheme (EUSS) to formalise their immigration status and retain the right to stay in the UK. Applications for the EUSS close on 30 June 2021.

Currently EEA and Swiss nationals, and their family members, can still prove their immigration status by showing their employer their EEA passport or national ID card. However, from 1 July 2021, that changes. The Home Office’s updated guidance provides information on the following:

• Changes to the way EEA citizens will prove their right to work in the UK from 1 July 2021;
• Changes to “List A” and “List B” including:
  • the removal of EEA passports, national identity cards and specified EEA Regulations documents as acceptable documents, which only confirm the individual’s nationality or that they were exercising EEA Treaty Rights from 1 July 2021;
  • the addition of:
    • Irish passports and passport cards,
    • A document issued by the Crown Dependencies Jersey, Guernsey, or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service
    • A frontier working permit issued under regulation 8 of the Citizen’s Rights (Frontier Workers) (EU Exit) Regulations 2020.

Any EEA or Swiss national who has successfully applied under the EUSS will also be able to share their immigration status with their employer online by generating a “share code” via the online checking system. Employers will obtain a statutory excuse against liability for a civil penalty if they carry out the check using the online service as set out in the guidance. Manual right to work checks can still be carried out by employers if the employee is in possession of a physical document.

EEA and Swiss nationals who do not have settled or pre-settled status under the EUSS from 1 July will have to demonstrate their right to work to prospective employers using other acceptable documents in “List A” and “List B.”.

Importantly, and to the relief of many employers, there is no mandatory requirement for an employer to carry out retrospective right to work checks on their employees if their employment began before 30 June 2021. Employers will maintain a statutory excuse against any civil penalty so long as the right to work check was carried out at the time the individual was employed. If you do choose to carry out retrospective checks you should ensure you do so in a non-discriminatory manner.

But what happens if an employer finds out that an EEA or Swiss citizen employed prior to 30 June 2021 has not applied to the EUSS by 30 June 2021?

The Home Office has now provided some clarity, and announced a transitional measure which employers may follow until 31 December 2021 in these circumstances, and have confirmed that employers do not need to cease employment at the time they identify an employee without status.

Instead, employers should:

• Advise the individual to make an application to the EUSS within 28 days and provide them with a Certificate of Application (CoA).

If no CoA is produced within 28 days the employer should take steps to cease the individual’s employment;

• When a CoA is produced, the employer must then contact the Employer Checking Service (ECS) to confirm the individual has applied, which will result in the Home Office issuing a Positive Verification Notice (PVN) which should be retained, alongside the CoA to secure a statutory excuse against a civil penalty for 6 months. A follow up check with the ECS should then be undertaken before the PVN expires. Where an individual has been granted status before the expiry date they can prove their right to work to their employer by using the Home Office right to work online service. If the follow up check confirms that the application is pending the employer will be given a further PVN for six months, and a further follow check should be undertaken in the same way as previously prior to expiry of the second PVN.

If the follow up check confirms that the application has been refused, the employer should take steps to end the individual’s employment.

This transitional measure is key, and ought to provide some comfort to employers who before now may have been concerned about potential liability for a civil penalty if, despite previous compliant right to work checks being undertaken prior to 30 June 2021, it transpires after 1 July 2021 that EEA and Swiss national employees are without status.

If you have any queries about conducting right to work checks please get in touch with one of our immigration experts or access further information on our Visa Hub.