Now that the UK has left the EU and the Brexit transition period has ended - during which an immigration status quo was temporarily maintained between the EU and the UK - the Home Office has issued updated guidance to clear up any confusion around right to work checks for EU nationals.
This new guidance confirms what has been known for a while – that employers should continue to check EU national's right to work in the same as always until 30th June 2021.
Until 30th June 2021, EU nationals in the UK can continue to submit their EEA or Swiss national passport, or national identity card, to evidence their right to work. This means that, for the purposes of the right to work check employers must conduct for all hires, there is to be no difference in treatment between an EU national that arrived in the UK before 11pm on 31st December 2020 (i.e. under the old EU freedom of movement rules) and one that arrived from 1st January 2021 onwards (i.e. subject to the UK's new points-based immigration system).
Provided a check has been completed in line with right to work legislation and guidance, and the employer does not know or have reasonable cause to believe the employee has no right to work, the employer will have a statutory defence should it later be revealed that the EU national does not have the continued right to work under the EU Settlement Scheme or under UK's new points-based immigration system. It also helps to have right to work caveats and warranties included in offer letters and employment contracts.
However, this works the other way too. Should an employer knowingly hire an illegal worker, they can face a civil penalty of up to £20,000 for each illegal worker or, in the most serious cases, criminal sanctions such as fines, imprisonment (or both).
Although this "grace period" will end as of 1st July 2021, there will be no requirement for employers to carry out additional retrospective checks on EU nationals that were hired on or before 30th June 2021. That said, all EU workers must either have settled status under the EU Settlement Scheme or permission under the UK's new points-based immigration system to be working in the UK lawfully from 1st July 2021 onwards.
Therefore, to ensure their workforce's stability, employers may wish to enquire as to whether their existing EU workers have secured a continued right to work past 30th June 2021. For hires from EU states during the grace period, employers can invite candidates to evidence their right to work using the Home Office's online service. However, employers must be wary of the risk of discriminating against a job applicant and cannot insist that the online service is used, nor discriminate against an individual that opts to show their passport or national identity card as proof of their right to work during the grace period.
From 1st July 2021, EU citizens (other than Irish nationals) moving to the UK to work will be required to demonstrate they have a right to work through evidence of their immigration status, rather than their nationality, using the Home Office's online service. As always, we will keep you up to date on this topic, as further guidance is expected in the coming months on the requirements for conducting right to work checks from 1st July 2021.
You can read the Home Office's new guide, "An employer's guide to right to work checks".
Get more information on the EU Settlement Scheme here.
Get more information on the UK's new points-based immigration system.
If you would like further information or advice on right to work checks and your hiring processes, please contact our Employment Team on 0161 941 4000 or email The Employment Team for more information.