Right to Works Checks – What employers need to know in a post-Brexit workplace

Following the end of free movement on 31 December 2020, many employers have been unclear on the position when conducting right to work checks for their European workforce. Given the serious implications for employers who are caught employing illegal workers, employers have been anxiously awaiting guidance on the position from the Home Office.

Clarity on this point was given by the Home Office on 17 March 2021 with the publication of the updated version of An Employer's Guide to Right to Work Checks guidance.

Annex B of the updated guidance specifically sets out the position regarding conducting right to work checks for EU, EEA and Swiss nationals (referred to throughout as “EU nationals”) between 1 January 2021 and 30 June 2021, which is the deadline for applications under the EU Settlement Scheme. The 6 month period is also known as “the grace period”.

Citizen’s Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, or the “grace period SI”, is a piece of secondary legislation introduced to implement the UK’s obligations regarding citizens’ rights under the Withdrawal Agreement (as well as other corresponding agreements for EEA EFTA states and Switzerland).

Under the grace period SI, the rights of EU nationals (and their family members) who are lawfully resident in the UK at the end of the transition period, but who have not yet been granted status under the EU Settlement Scheme, are protected. The deadline for most EU nationals (and their family members) to apply for status under the EU Settlement Scheme is 30 June 2021. The grace period SI ensures that EU nationals and their family members who apply to the EU Settlement Scheme by 30 June 2021, but who have not yet been granted status under it, can continue to live in the UK as they do now. This protection includes EU nationals maintaining their right to work in the UK. The protection under the grace period SI will continue until their application is determined by the Home Office. The protection is extended to individuals awaiting the outcome of any appeal against a decision by the Home Office to refuse status.

Right to Work Checks for EU nationals on or before 30 June 2021

The guidance confirms that until the end of the grace period, EU nationals can continue to evidence their right to work in the UK with their original passport or national identity card. Therefore indicating that throughout the grace period, evidence of EU nationality will suffice to evidence a right to work in the UK, as opposed to evidencing immigration status. The guidance set outs the acceptable documents which can be used by EU nationals (and their non-EU family members) until 30 June 2021 to evidence their right to work to employers.

The guidance also specifically states that employers are not expected to differentiate between those EU nationals who arrived in the UK before the end of the transition period (i.e. before 11pm on 31 December 2020), and those arriving in the UK during the grace period.

Practical implications for employers

The Home Office guidance emphasises that employers will wish to ensure their workforce is stable during the grace period. However, employers cannot insist that EU nationals use the EU Settlement Scheme, nor can employers discriminate against those EU nationals who choose to use their passport or national ID card as evidence of their right to work during the grace period.

The guidance also confirms there is no mandatory requirement for employers to conduct retrospective checks on EU nationals employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against civil penalties for illegal working, if the initial right to work check for their EU workforce was undertaken in line with the right to work legislation and guidance.

Any employers seeking to conduct retrospective right to work checks to ensure their record-keeping is up-to-date, must do so in a non-discriminatory manner. Practical guidance on how to avoid unlawful discrimination when conducting right to work checks, can be found in Code of Practice for employers: Avoiding unlawful discrimination while preventing illegal working.

In the event an EU national is unable to provide their employer with acceptable documents due to an outstanding application under the EU Settlement Scheme, or other immigration category, employers should contact the Employer Checking Service to establish a statutory excuse.

Right to Work Checks for EU Nationals on or after 1 July 2021

The end of the grace period on 30 June 2021 means EU nationals will be required to demonstrate their right to work on or after 1 July 2021 through evidence of their immigration status in the UK, instead of their nationality, and do so by using the UK Government’s online service, View a job applicant's right to work details.

The Home Office has announced new guidance on conducting right to work checks on EEA nationals from 1 July 2021 will be issued in advance of this date.

For EU citizen job applicants in the UK, they should refer to the Home Office leaflet: Understanding your right to work in the UK: EU, EEA and Swiss citizens to understand more about the right to work processes during the grace period.

For employers, the Home Office factsheet: Right to Work: Employer Factsheet is a helpful guide to ensure employers are both acting in a non-discriminatory manner and taking all necessary steps to prevent illegal working. As it remains unclear as to the position on right to work checks for EU nationals on or after 1 July 2021 and employers may wish to seek advice on right to work checks to ensure they are remaining compliant with legislation.

If you would like any advice or assistance regarding right to work checks for your employees or wish to seek advice on your own immigration position then please do not hesitate to contact one of the experienced solicitors in our immigration team.