Right to work checks for EU nationals – what do I need to do?
7th June, 2021
All employers have a responsibility to prevent illegal working in the UK and should carry out right to work checks on all new recruits before employment begins.
Brexit brought with it the end of freedom of movement for European nationals and on 1 January 2021 a new immigration system was introduced in addition to the pre-existing EU Settlement Scheme (EUSS). The deadline of 30 June 2021 by which eligible EEA nationals* must apply to the EUSS is fast approaching.
In light of this and the end of freedom of movement, employers are left wondering what this means for the right to work status of their European workers.
*Unless otherwise stated, references to EEA nationals include EU and Swiss nationals.
In order to provide the statutory excuse, a right to work check:
- must be carried out before employment begins;
- can be done either using the online check or with original ID documents;
- the ID must be checked in the presence of the holder or via video call; and
- appropriate evidence of the check must be retained.
For more detailed information, including the current covid-19 concessions, please visit the Visa Guidelines Hub here.
The statutory excuse is an ‘excuse’ given to employers who are found to be employing an illegal worker but have properly carried out the right to work check. This allows the employer to avoid a civil penalty.
No. If a compliant right to work check has been carried out and can (if required) be evidenced, the employer will receive the statutory excuse. If however you have not previously carried out this check, or have concerns about whether checks done are compliant, it is recommended that you carry out a new check of any affected workers’ right to work.
No. Until 30 June 2021 EEA nationals are entitled to evidence their right to work by providing the employer with their passport or national identity card. Requiring evidence of their application under the EUSS or evidence of their settled or pre-settled status exposes the employer to discrimination claims.
It is recommended that employers inform staff of the need to apply under the EUSS before the deadline of 30 June 2021 and explain that if they fail to do so, they will lose their right to work. Employers can invite workers who have applied to provide evidence of their status for your records but they cannot be forced to do so.
You should continue to carry out the standard right to work check until 1 July 2021.
The period 1 January to 30 June 2021 is a post-Brexit grace period and so during this time employers should carry out the aforementioned right to work check and can accept an EEA national’s passport or ID card as evidence of their right to work.
No. Only EEA nationals who began residing in the UK by 11.00pm on 31 December 2021 are eligible to apply under the EUSS. EEA nationals who began residing in the UK after this date require a visa to work in the UK. Notwithstanding this, the Home Office guidance specifically states that employers aren’t required to find out when an EU national started residing in the UK.
So long as a compliant right to work check has been carried out and the statutory excuse obtained, employers are protected from a civil penalty in the event that a worker turns out not to have the right to work. However if you know or have reasonable cause to believe that the EEA national arrived in the UK on or after 1 January 2021, you will be aware that they require a visa and if they do not have one, that they are an illegal worker. In this situation a criminal and civil offence would be committed and the statutory excuse becomes null and void.
Cautious employers may choose to ask for evidence of when the EEA national began residing in the UK so that you can determine whether a visa is required and if so, request evidence of this in order to ensure the right to work.
Yes. The Home Office guidance is due to be updated shortly and it is expected to require the employer to receive evidence of pre-settled or settled status, or alternatively a visa permitting the EEA national to carry out the role that they are being recruited to do. This is expected to apply to new recruits only as the Home Office has confirmed that retrospective right to work checks for existing staff are not required.
- Remind staff to apply under the EUSS before 30 June 2021 if they are eligible and encourage sharing of the outcome of their application;
- Familiarise yourself with the current right to work check requirements for EEA nationals;
- Ensure that staff are fully trained and that your organisation’s right to work checking policies and procedures are comprehensive and will result in you receiving the statutory excuse;
- Identify any missing or inadequate right to work checks and carry out updated checks; and
- Watch out for updates from us regarding the updated right to work guidance which will apply from 1 July 2021.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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