The home office published the long-awaited guidance for the right-to-work check that applies from 1st July 2021. The update highlighted significant changes to the UK’s right-to-work check system after the end of the Brexit transition period on 31st December 2020 and the following probationary period. The guidance highlights that employers do not need to conduct retrospective checks on EU, EEA, and Swiss citizens who started work before 1st July 2021. Employers need to ensure their right-to-work procedures are aligned with the new guidance from the Home Office.
Right-to-work checks until 30th June 2021
EEA, EU, and Swiss citizens were given a grace period of 6 months after the end of the Brexit transition period (from 1st January 2021 till 30th June 2021) to apply through the EU settlement if wanted to continue working in the United Kingdom.
During this period EU, EEA, and Swiss citizens were allowed to submit their passports as evidence for the right to work check purposes.
"Significant changes to the UK’s right-to-work check system after the end of the Brexit transition period on 31st December 2020 and the following probationary period..."
Right-to-work checks from 1st July 2021
From 1st July 2021; EEA, EU, and Swiss Citizens are required to submit immigration status as evidence to work in the UK. They can no longer use their passport or identity card to prove their right to work.
The prescribed list A/B documents have changed since 30th June 2021, and they no longer feature EEA passports or national ID cards as acceptable documents to establish a right to work.
The new guidelines apply to both the new employees and follow-up checks carried out on the existing staff.
The employer must ensure the right-to-work check is carried out in line with the new guidance, as they can face a civil penalty of up to £20,000 per person if they employ an illegal worker. Failure to conduct a compliant check can result in the cancellation of license and other sanctions.
retrospective checks for workers who commenced work on or before 30th June 2021
It is important to note that the new guidelines apply to the right-to-work checks conducted on or after 1st July 2021. Employers do not need to check the status of any EU, EEA, and Swiss worker that was employed before 1st July 2021. (Page 39 of Home Office Guidance)
The employer may have unintentionally employed individuals who do not have the right to work in the UK. However, if the employer conducted a right-to-work check before 1st July 2021, the employer can use this as a statutory excuse against a civil penalty.
Effect of new guidelines on EEA Nationals
The key points of the new guidelines are:
from 1st July 2021, EEA nationals cannot use their passports, identity cards as the right-to-work evidence.
new set of acceptable documents have been released in the new guidelines (Annex A) for conducting manual right to work checks new guidelines annex B list out all the scenarios affecting the right-to-work checks of EEA citizens
Adjustments under the EU settlement
EU, EEA, and Swiss citizens who have applied for the EU settlement may still be waiting for status confirmation. These citizens continued to have their right to work until the status of their application is decided. From 1st July 2021 onwards any citizen waiting for status confirmation will have been issued a certificate of application or receive a EUSS email confirming their application.
Certificate of application can be issued digitally. In that case, the employer can use the online right to work service to verify the status of the application using the share code provided by the employee.
In case of a paper certificate of application or email receipt, the employer must use Employer Checking Service to verify the status. The employer can verify the status only with the permission of the applicant and must keep a copy of the certificate of application or EUSS receipt email. When the employer uses the Employer Checking Service, the home office issues a positive verification notice to confirm the applicant has the right to work in the UK. This status is valid for a period of 6 months.
EEA citizens employed on or before 30th June 2021 are also required to apply for the EU settlement. Employers do not need to take immediate action if existing workers have not yet applied for EU settlement. The employer can advise these employees to apply within 28 days. The employers should then obtain a certificate of application and a positive verification notice from the home office. This adjustment is applicable till 31st December 2021.
On 6th August, the government announced that EEA citizens who have made late applications for the EU settlement can take up new employment while they wait for status verification.
Those who do not qualify under the EU settlement scheme will need a visa under the UK points-based immigration system to work or some other visa
EEA nationals who wish to commence employment from 1st July 2021 and have not applied for the EU settlement scheme will have to provide alternate immigration status to prove their right to work in the UK.
Digital immigration status
In the new guidance, there is a reference to eVisa. “eVisa” is a digital visa provided by the Home Office as evidence of a person’s immigration status. The home office has enabled an online system that allows employers to check whether a person is allowed to work in UK or not. Employers willing to conduct online right-to-work checks using eVisas will need a share code provided by the employee. However, if the individual does not want to demonstrate their right to work using the online service, then the employer must conduct a manual right-to-work check.
COVID-19 interim adjustments
The government has introduced temporary adjustments to conduct right-to-work checks because of Covid. These concessions will stay in place from 30th March 2020 until 5 April 2022 (inclusive). The main purpose of these adjustments is to support the remote and hybrid work model. The guidance highlights that a retrospective check is not required where a compliant Covid-19 adjusted check was conducted by the employer.
What actions should employers take?
Employers should make sure that all employees involved with conducting right-to-work checks are trained on the changes and all right-to-work check processes are updated.