New law: Employers need to make different ‘right to work’ checks now the Brexit transition period has ended

UK employers have long been required to check the immigration status of new workers by carrying out ‘right to work’ checks - and, for workers with a time-limited right to work in the UK, to do follow-up checks as the end of their time limit approaches.

Now that the Brexit transition period has ended, new checks for workers from the European Economic Area (EEA, which comprises the EU member states, plus Norway, Liechtenstein and Iceland) apply except for Irish nationals, who benefit from special rules. The changes are being introduced in phases. Checks for workers from outside the EEA are not affected.

EEA nationals who were already in the UK at the end of the transition period must apply for settled or pre-settled status by 30 June 2021 under the ‘EU Settlement Scheme’ (EUSS) for the right to work in the UK.

Most EEA nationals who come to the UK for the first time between 1 January 2021 and 30 June 2021 will have skilled worker status, and their employer must either:

• see their passport or national identity card; or
• if the individual has already been given permission to work in the UK under the EUSS, view their permission using an online service – but only if the employee consents to this. An employer cannot insist on it.

If an employee does not give consent to their UK employer to view their EUSS permission online, or their application for permission is still being processed, some employers will be taking on EEA employees between 1 January and 30 June 2021 without knowing whether they have permission to work in the UK or not.

If it turns out that an EEA national is in fact working illegally, the employer has committed a criminal offence and is liable to civil sanctions, unless it can show that it was neither aware, nor had reasonable grounds to believe, that the EEA national did not have permission to work here. There is no official guidance to help employers deal with this potential liability other than one promise the government has made - that employers will not have to carry out retrospective checks on EEA nationals recruited during that period.

The government has also said it will provide guidance for employers taking on EEA nationals after 30 June 2021 in due course. It is anticipated they will have to provide proof of settled or pre-settled status under EUSS, or one of the other documents that had to be produced previously.

Operative date

• Now

Recommendation

• Employers should:
  • Encourage existing employees to apply for settled or pre-settled status before 30 June 2021.
  • Review which right to work checks to carry out between 1 January and 30 June 2021, and then thereafter.
  • Monitor for publication of the new government guidance.