Updated guidance on employer’s right to work checks

The Home Office has updated its guidance for employers on conducting right to work checks. The most significant change relates to right to work checks involving EEA citizens and their non-EEA family members with Pre Settled Status under the EU Settlement Scheme. This update follows on from recent changes to the EU Settlement Scheme. 

The Home Office no longer requires employers to carry out repeat right to work checks for holders of Pre Settled Status. Previously, where a person held Pre Settled Status, the employer would require to undertake a right to work check before the start of employment as well as a repeat check in order to continue to employ the person before the expiry of their Pre Settled Status. Now, employers no longer need to carry out a repeat check. 

It is imperative that employers correctly carry out right to work checks prior to the commencement of employment for those holding Pre Settled Status. In that event, and providing that the employer is not knowingly employing someone without the right to work, the Home Office will not take civil penalty action. 

This does not negate the requirement to take appropriate action if an employer identifies an existing employee who no longer has a right to work.

An employer can still elect to carry out a repeat right to work check. If an employer does so then they must ensure that they do so in a non-discriminatory way.

Employers must ensure they undertake right to work checks in compliance with the relevant legislation and Home Office guidance. If they do not then the employer will not have a statutory excuse in the event an individual is found to be working illegally and may be liable for a civil penalty (of up to £60,000 per illegal worker) or be committing a criminal offence. 

If you would like advice on right to work checks, then please do not hesitate to contact one of the experienced solicitors in our immigration team.