Changes to Right to Work Checks from 1 July 2021

Background

Following the UK’s departure from the EU, a grace period of six months began on 1 January 2021, during which time relevant aspects of free movement law was retained to allow eligible EEA and Swiss (“EEA”) citizens and their family members resident in the UK by 31 December 2020 to apply to the EU Settlement Scheme (“EUSS”). This grace period ends on 30 June 2021, which is also the deadline for applications under the EUSS (although limited provisions for late applications apply).

What’s changing?

From 1 July 2021, EEA citizens and their family members are required to evidence immigration status in the UK, in the same way as other foreign nationals. They can no longer rely on an EEA passport or national identity card to prove their right to work. 

The prescribed List A/B documents will therefore change from 1 July 2021 and will no longer feature EEA passports or national ID cards as acceptable documents in order to establish a right to work.  

Most EEA citizens resident in the UK will have made an application to the EU Settlement Scheme by 30 June 2021 and will have been provided with digital evidence of their UK immigration status. They will be able to evidence their right to work by sharing their immigration status digitally, using the Home Office online ‘Prove your right to work to an employer’ service on GOV.UK. 

There will, however, be some EEA citizens who have another form of leave in the UK, held in a physical document, for example an endorsement in a passport, visa or vignette. These documents are included in the prescribed List A/B document list.

Irish nationals continue to have the right to work and can continue to prove their right to work as they do now by using their passport.

What about existing employees?

It is important to note that the new code of practice applies to initial right to work checks conducted only on or after 1 July 2021, and repeat checks required on or after this date.   There is no mandatory requirement for retrospective checks to be carried out on EEA nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in the prescribed manner in line with right to work legislation and the previous guidance. If an employer chooses to carry out retrospective checks, Home Office guidance states that they must ensure that they do so in a non-discriminatory manner.

In addition to the above, in an important change to the accompanying right to work guidance for employers which was updated on 18 June 2021, the Home Office has announced a further transitional period which applies to certain existing EEA national employees as at 30 June 2021 and which runs to 31 December 2021.  

A New 28 Day Grace Period

An employer, whether as a result of conducting retrospective checks or as a result of an audit, (for example), may discover an existing EEA employee who has not applied under the EUSS by the deadline of 30 June 2021, and who has no other immigration status in the UK. In such circumstances, where the individual has reasonable grounds for missing the deadline, employers are not required to cease that individual’s employment at the point the lack of status is discovered if the transitional arrangements apply. 

For the transitional measures to apply, the individual must have been an employee at 30 June 2021. They must make an application under the EUSS within 28 days of the discovery and provide their employer with a Certificate of Application (CoA). The employer must then contact the Employer Checking Service (ECS) where they should receive a Positive Verification Notice (PVN) which will provide a statutory excuse valid for six months which should allow sufficient time for the late application to be processed.  A further repeat check will then be required before the end of the six month period.

As part of their application the individual will be required show reasonable grounds as to why they have missed the deadline, however Home Office guidance on acceptable reasons will remain relatively wide-ranging for the time being and includes not being aware of the deadline for applications, for various reasons.

If an existing EU national employee as at 30 June 2021 is discovered without status between 1 July 2021 and 31 December 2021, we recommend contacting your usual CRS representative immediately for further legal advice.  If they do not make an application to the EUSS within 28 days of the discovery, employers may need to take steps to cease their employment in line with right to work legislation.

Online Checks

Employers can conduct a Home Office online right to work check to establish a statutory excuse against a civil penalty, where eligible. 

Employers can conduct an online check by accessing the Home Office online service ‘View a job applicant's right to work details’ on GOV.UK. The online service allows checks to be carried out by video call, and employers do not need to see physical List A/B documents as the right to work information is provided in real-time, directly from Home Office systems.

Not all prospective employees will have evidence of their immigration status which can be checked online. Currently, the Home Office online checking service only supports checks in respect of those who hold:

• a current biometric residence permit;
• a current biometric residence card;
• status issued digitally under the EUSS;
• status issued digitally under the points-based immigration system; and
• eVisa holders (currently only EEA nationals with permission to stay under the Skilled Worker or Intra-Company routes).

In line with the Government’s ‘New Immigration Plan’ to move towards fully digital immigration status by 2024, there will be an increasing number of individuals who will have been issued their immigration status digitally and so will have no physical document evidencing their right to work. They will only be able to use the online service to prove their right to work and employers must ensure that they do not discriminate against those who can only prove their right to work digitally using the Home Office online service.

For further information please contact Rose Carey, Kelvin Tanner or Paul McCarthy in the Immigration team.