From 1 July 2021, EEA passports and national ID cards alone no longer demonstrate that an EU, EEA or Swiss national has the right to work in the UK. Below we explore the different approaches that may need to be taken to right to work checks in respect of EU, EEA and Swiss nationals.
Background
After the end of free movement on 31 December 2020, the UK government introduced a "grace period", during which EU, EEA and Swiss nationals (other than Irish nationals) (European nationals) had an additional six months in which to secure their immigration status in the UK under the EU Settlement Scheme (the Scheme). The deadline for applications under the Scheme was 30 June 2021 and European nationals and their family members living in the UK should by now have either applied for status under the Scheme or have obtained the right to live and work in the UK via another means.
The government has therefore published an updated draft code of practice on preventing illegal working which takes effect from 1 July 2021, as well as updating the employer guidance on right to work checks. These set out the new rules for right to work checks in relation to European nationals and their family members.
Right to work checks for European Nationals
From 1 July 2021, it is not enough for a European national to provide their passport or national ID card as proof that they have the right to work in the UK. The only exception is Irish nationals, who continue to have the right to live and work in the UK and need only provide their Irish passport to evidence this.
Employers carrying out right to work checks for European nationals after this date will need to ask for additional evidence. If employers can demonstrate that they undertook right to work checks in line with Home Office guidance, they should be able to establish a statutory excuse to avoid a civil penalty of up to £20,000 per illegal worker if it later transpire that the person does not have the right to work in the UK.
There is currently guidance in place which allows employers to conduct "Covid-19 adjusted checks" on employees until 31 August 2021. This allows employees to undertake virtual checks, rather than seeing original documents. For more information, please see our article here.
The online checking service
Most of the time, the additional evidence that will be required is proof of the European national’s settled or pre-settled status under the Scheme. This is not a physical document but is held digitally by the Home Office. Employers must use the Home Office’s online checking service to confirm that the individual has the right to work in the UK. The individual will need to provide you with a share code and their date of birth in order for you to use the online checking service. Employers must ensure that they log onto the "employer portal" of the service to enable the employer to establish a statutory defence. Logging into the "employee portal" will not be sufficient. Employers must ensure they follow the Home Office guidance in full and keep a copy of the profile page confirming the individual’s right to work. This is the page which includes the individual’s photo and the date on which the check was conducted.
Employers should always check the latest guidance and any relevant legislation before carrying out right to work checks to ensure they have done enough to establish a statutory excuse as the Home Office guidance changes regularly.
Other methods of checking an individual’s right to work
There are a number of reasons why a European national’s status may not be verifiable using the online checking service and, in order to avoid discrimination, employees must be given the opportunity to provide alternative evidence of their right to live and work in the UK. For example, European nationals are likely to need to provide another form of evidence where:
- There is an outstanding application under the Scheme;
- The European national has Indefinite Leave to Enter or Remain;
- The European national has a visa or permission to stay under the Points Based System;
- The individual is an Irish nationals; or
- The European national is a Frontier Worker.
Further information about the documents you will need to check in each case is available in the employer guidance on right to work checks.
European nationals employed before 1 July 2021
Before 1 July 2021, employers only needed to see and copy a European national’s passport or national ID card in order to establish a statutory defence against a civil penalty. This also applies to employees who start work after 1 July 2021, but whose checks have been undertaken before 1 July 2021. There is no requirement for employers to undertake retrospective checks in respect of these European nationals employed (or checked) before 1 July 2021.
However, if an employer subsequently becomes aware, or has reasonable cause to believe, that an employee does not have the right to work in the UK, the statutory excuse will no longer apply. Until 31 December 2021, the employee’s employment may not need to be terminated in these circumstances, provided their employment began before 1 July 2021 and they apply under the Scheme with 28 days. We suggest employers seek advice on next steps. For further information about this, please see our article here.
This further transitional arrangements do not apply to European employees whose employment began after 30 June 2021. Employers should take advice in relation to any European national employed or offered a job after this date who has not applied under the Scheme and who cannot provide evidence of their immigration status in UK as they may need to terminate the employee’s employment or withdraw the offer. Before doing so, employers should give the individual the opportunity to provide evidence of their right to work and consider if there is any other way in which the individual could obtain the right to work in the UK, such as through sponsorship as a Skilled Worker.
Kerry Garcia