The UK's exit from the European Union and the impact of the pandemic over the last 12 months has subjected the normally quite static rules on right to work checks to significantly change. In this article, we summarise the changes so that employers can ensure that their recruitment and right to work processes are up-to-date and compliant.
What were the rules until 30th June 2021?
The EU Settlement Scheme (EUSS) closed to most applications on 30th June 2021. Until that deadline, EU, European Economic Area (EEA) and Swiss nationals could submit their passports or national identity cards for a right to work check in order to demonstrate their right to live and work in the UK (regardless of whether they had applied for the EUSS or not).
How have the rules changed from 1st July 2021?
From 1st July 2021, the day after the EUSS closed for most applicants, EU, EEA, and Swiss nationals cannot continue to show their passport or national identity card for the purposes of a right to work check. They will need to be able to demonstrate that they have a form of immigration permission in the UK.
When hiring EU, EEA, and Swiss nationals from 1st July 2021, employers and their HR staff will need to conduct the right to work check with a share code and date of birth provided by the individual (read the guide on right to work checks here for further information). If an individual's immigration status cannot be verified digitally in this way, an employer can also look at the original documents (read more on the documents here for further information).
Some individuals may provide a form of time-limited immigration permission to employers, such as pre-settled status under the EUSS, in which case a follow-up check will need to be carried out at the relevant time.
It's important that employers adapt to these changes as they can be hit with fines of up to £20,000 per employee if they employ illegal workers and did not carry out a compliant right to work check.
Do employers need to check that individuals hired before 30th June 2021 have obtained immigration status?
With the exception of the time-limited immigration permission referenced above, employers are not required to conduct follow-up checks generally on EU, EEA and Swiss nationals that may have used their passports or national ID cards prior to 30th June 2021 to pass their right to work check.
This could inadvertently mean that a company has employees working for it who actually lost their right to continue working in the UK from 1st July 2021 onwards. However, as long as that employer carried out a compliant right to work check at the outset of the employment and they were not aware that the individual was an illegal worker, they will have a statutory excuse to avoid any civil penalties that arise in the event that individual is found to have lost their right to work.
Despite there being no legal obligation, an employer may still want to know for organisational reasons whether a certain employee has secured valid immigration permission covering them from 1st July 2021 onwards. This would need to be approached carefully following legal advice so as to ensure the risks of claims, such as discrimination claims, are minimised.
What should we do if an employee didn't apply to the EU Settlement Scheme by 30th June 2021?
If an employer discovers that an employee from the EU, EEA or Switzerland did not apply for settled status under the EUSS in time, Home Office guidance does not recommend that they are immediately dismissed.
Instead, the Home Office has introduced a temporary transitional arrangement for such situations, which lasts between 30th June 2021 and 31st December 2021. That is:
- The individual does not need to be dismissed if the transitional arrangements apply
- The individual should be told to apply to the EUSS within 28 days and provide their employer with a Certificate of Application (CoA). If they do not make an application to the EUSS within 28 days, the employer must take steps to cease their employment in line with right to work legislation.
- Once provided with a CoA, the employer must then contact the Home Office Employer Checking Service (ECS) to confirm the individual has applied. When contacting the ECS, you may be asked to provide evidence of the start date of the individual's employment (such as a copy of the initial right to work check).
- The ECS will give you a Positive Verification Notice (PVN) where an application has been made. Retaining the PVN and a copy of the individual's CoA will then provide you with a statutory excuse against a civil penalty for six months. This six months' then allows sufficient time for the application to be concluded and enables the individual to maintain their employment with you during that time.
- Before the PVN expires, you must do a follow-up check with the ECS in order to maintain your statutory excuse against a civil penalty.
Please check Home Office guidance for full details of this process.
Is an employer at any risk of civil or criminal liability if they continue to employ an EU, EEA or Swiss worker whilst they make a late application to the EUSS?
Home Office guidance suggests that criminal action is reserved for the most serious cases of right to work rules being breached by an employer, and such action "is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with this guidance to support their employees to make an application to the EUSS". However, we suggest that employers take specialist advice on a case-by-case basis to assess risk.
Employers should keep records after carrying out a right to work check, including any check carried out in response to a late application to the EUSS. If a company have followed the correct procedures, they should have evidence that the statutory excuse applies, excusing them of any civil penalties.
How has COVID-19 and the pandemic impacted right to work checks?
Employers must monitor the end of Covid-19 adjusted right to work checks. A temporary adjustment with which a statutory excuse is available for checks performed based on scanned copies or photos of original documents over a live video call (with the original copies kept by the individual) is due to expire on 31st August 2021, with a requirement for the normal full checks recommencing from 1st September 2021. However, the end of this concession has been delayed twice following continued lockdown in England, so this is something for employers to monitor as 1st September 2021 approaches.
Here to help
If you would like more information regarding right to work checks, then contact our Employment Solicitors on 0161 941 400 or email the employment team