Right to work checks – an update (June 2021)

Posted 24/06/2021 : By: Jem Cranfield

Right to Work checks were already a complex area for employers, and the situation became trickier with the arrival of the points-based immigration system and the EU Settlement Scheme – click the links to see our articles on these subjects from the end of last year.  

This article was originally published in May 2021 but was updated in June 2021 following the release of further Government guidance relating to right to work checks.

Extension to 31 August 2021 of temporary measures for virtual right to work checks

It has been confirmed that the temporary measures allowing an employer to undertake right to work checks over a video call have been extended to 31st August 2021.  The measures had been brought in in response to the Coronavirus pandemic and have been extended several times due to the implications of the Governments’ Coronavirus roadmap and in response to concerns expressed by employers about the safety risks associated with face to face meetings whilst the virus is still in circulation.

Importantly, there is no requirement for employers to conduct a retrospective face to face check once restrictions ease.  Employers will maintain a statutory excuse against illegal working if they conducted a virtual right to work check properly – employers should write “Adjusted check undertaken on [insert date] due to COVID-19” on the scanned documents that are submitted by the employee, or use the Online Checking Service.

EU Settlement Scheme – grace period and deadline

Free movement ended at 11pm on 31 December 2020 as a result of Brexit.  A grace period which maintained the rights of EU, EEA and Swiss citizens to live and work in the UK began from that date and ends on 30 June 2021.

Applications for the EU Settlement Scheme (EUSS) must be made by 30 June 2021. EU, EEA and Swiss citizens wishing to live and work in the UK must apply by the deadline and should be granted either Pre-Settled or Settled Status which will allow them to remain in the UK to live and work.  

If the Government identifies eligible citizens after the deadline who have not applied under the EUSS, they will be given 28 days to do so from the date they are contacted.  It is estimated that 400,000 citizens will be in this situation, and plans for late application routes are expected to be fleshed out in more detail soon.

EUSS applicants who are awaiting a decision on Settled or Pre-Settled Status will be provided with a Certificate of Application which can be used to prove right to work.  There is already a backlog of applications and therefore many applicants are not likely to have a confirmed decision by 1 July 2021.

Employers must not ask employees to prove their EUSS status until after the deadline as this could amount to discrimination.  Until 30 June 2021, EU, EEA and Swiss citizens can prove their right to work using their Passport or National Identity Card.

Following a significant period of uncertainty, it has now been confirmed that employers do not need to make a distinction between EU, EEA and Swiss citizens who arrived in the UK before 31 December 2020 and those who arrived during the grace period, for the purposes of right to work checks.  As long as the check is performed by 30 June 2021, no further action needs to be taken regardless of when the employee arrived in the UK.

Furthermore, the Government clarified in March 2021 that employers will not need to retrospectively check the right to work of their EU, EEA or Swiss employees after 30 June, provided they began employment on or before 30 June.  In other words, if the employee proved their right to their employer before this date, the employer does not need to check again or explicitly ask for proof of EUSS status.  As with the Coronavirus measures above, the employer should clearly record the date of the check-in case of any queries from the Home Office.

EU, EEA and Swiss Nationals can prove their EUSS status and right to work online – they will need to provide the Employer with a share code and their date of birth.  The Employer checking site can be found at https://www.gov.uk/view-right-to-work. A manual check is available in a limited set of circumstances – the online check is being encouraged as the quickest and easiest way to check EUSS status.

EU, EEA and Swiss Nationals will be subject to the Points-based Immigration System after 30 June, and employers may need a Sponsor Licence to employ them.

General reminders

Employers must check the right to work of all their employees, regardless of their apparent or actual nationality, race etc.  The Home Office provides a Right to Work checklist which details the documents required.  In general two documents are required, one of which should show a National Insurance number.  Driving licences, medical letters, utility bills or bank statements are not proof of the right to work in the UK.  Employers, with their employees’ permission, can also use the online service to check the right to work.

There are serious penalties for employing illegally, which can apply even if the employer did not know it was taking place.  To defend themselves, employers must make sure they record the dates of checks and take clear, legible copies of any documents.  The Home Office works with government agencies and has a tip-off line to investigate illegal working.  A prison sentence can be handed down, along with a civil penalty of up to £20,000 per illegal worker.  Employers who are found to have illegally employed staff will also have their details published on an open register, so there is a real reputational risk to consider too.

The Home Office will expect immediate dismissal of any employees it confirms are working illegally – employers who find themselves in this situation should seek advice from one of our experienced employment lawyers.

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