EU nationals who began residing in the UK by 31 December 2021 were eligible for settled or pre-settled status under the EU Settlement Scheme (EUSS). EU nationals who began residing in the UK on or after 1 January 2021 cannot apply under the EUSS and require a visa to work in the UK.
The period 1 January to 30 June 2021 was a post-Brexit grace period and so regardless of when the EU national began residing in the UK, employers were permitted to carry out the standard right to work check. This meant that the individual could provide a document from List A or List B, e.g. their EU passport, evidence of pre-settled or settled status.
The Home Office guidance specifically states that employers aren’t required to find out when an EU national started residing in the UK.
A compliant right to work check gives the employer the statutory excuse, providing protection from a civil penalty if the employee subsequently does not have the right to work.
However if the employer knows or has reasonable cause to believe that the EU national arrived in the UK on or after 1 January 2021, it will be aware that the employee requires a visa and, amongst other things, the statutory excuse becomes null and void.
