Immigration: getting right to work checks right after Brexit

We consider an employer’s duty to conduct right to work checks and how to comply with new obligations in respect of EU, EEA and Swiss nationals following Brexit

20 May 2021

Employers have always had to carry out right to work checks in accordance with government guidance to ensure that their employees have immigration permission to work in the UK. However, with the end of freedom of movement for European nationals and the implementation of a new UK immigration system, employers need to understand the new regime and make sure that they carry out compliant checks. Failing to get it right could lead to costly fines and impact on their ability to employ overseas nationals. In this article, we explore these changes and the steps employers must now take to ensure compliance with the immigration regime. Unless otherwise stated, references in this article to EEA nationals include EU and Swiss nationals.

Conducting right to work checks

All employers have an obligation to prevent illegal working in the UK and this includes carrying out right to work checks on all employees before they start work. If an employee’s right to work is temporary (e.g. because they have a time-limited visa), the employer must conduct a further follow-up check shortly before their right to work is due to expire.

An employer commits a criminal offence if it knows, or has reasonable grounds to believe, that the person does not have immigration permission. An employer commits a civil offence if it unknowingly employs a person without immigration permission. The defence to the civil offence is to carry out a compliant right to work check before the person starts employment (the 'statutory excuse'). There is no defence to the criminal offence.

The right to work check is a three-stage process of obtaining, checking and copying relevant identity documents in accordance with the current government guidance. This is typically done by checking original documents but the checks can be done through an online checking service in some circumstances. There are temporary changes in place to facilitate right to work checks during COVID-19, however, these will no longer apply from 1 September 2021.

Whilst right to work checks must be carried out before the employee commences work, it is usually best to conduct these as late in the recruitment process as possible to avoid job applicants arguing that any recruitment decisions have been based on their nationality or their immigration status.

Right to work checks for EEA nationals

Following the introduction of the new immigration system, employers should continue to carry out right to work checks on all new recruits. The impact of Brexit and the changes to the immigration system will principally affect right to work checks in respect of EEA nationals. The procedure in respect of non-EEA nationals seeking to work in the UK remains unchanged.

Under the new system, the majority of EEA nationals who arrive in the UK after 31 December 2020 are likely to require a skilled worker visa in order to be able to work unless they benefit from an alternative route of entry (such as Irish citizenship).

However, EEA nationals who entered the UK before 11pm on 31 December 2020 have until 30 June 2021 to apply for settled or pre-settled status under the EU Settlement Scheme ('EUSS'). If successful, this will give them the right to work in the UK. Those who have applied by the deadline but are not yet granted status under the EUSS can continue to work in the UK as they do now and maintain their right to work until their application is determined, including pending the outcome of any appeal against a decision to refuse status. Alternatively, EEA nationals and their family members will need to obtain another form of UK immigration status to live and work in the UK after 30 June 2021.

EEA nationals recruited between 1 January 2021 and 30 June 2021

For EEA nationals being recruited between 1 January 2021 and 30 June 2021, employers can rely on a passport or national identity card from an EEA national. Alternatively, if the individual has been granted permission under the EUSS, the individual can choose to share evidence of their right to work using an online service. However, in order not to discriminate on the basis of nationality, employers cannot require EEA nationals to show proof of their status under the EUSS, but they may wish to inform individuals of the EUSS and the potential consequences of failing to apply before the deadline of 30 June 2021.

This does potentially mean that an EEA national could come to the UK on or after 1 January 2021 without immigration permission (i.e. be an illegal worker) and the employer would still have a defence to the civil offence by checking the person’s passport. However, if the employer is aware (or has reasonable grounds to believe) that the person does not have immigration permission, they may commit the criminal offence (see above). There is no current guidance as to how employers should deal with this issue.

EEA nationals employed from 1 July 2021

From 1 July 2021 onwards, right to work checks will change and all EEA nationals will be required to demonstrate their right to work through evidence of their immigration status, rather than their nationality, using the Home Office’s online service (subject to a small number of exceptions). The government will publish revised guidance before 1 July 2021 onwards and employers should prepare themselves for further changes.

The government has stated there will be no requirement for retrospective checks to be undertaken in respect of EEA nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse provided the initial right to work check was undertaken in line with right to work legislation and the Home Office guidance.

Evidence of right to work checks and record-keeping

Employers must retain a copy of each employee or worker’s documentation evidencing their right to work and they must also keep a note of the date the check was carried out. Where a check has been conducted online, employers must keep a record that it has been done by printing out or taking a screenshot of the relevant page. These records of right to work checks should be retained throughout the duration of the employee’s employment, and for a further two years after their employment has ceased.

Penalties for employing staff without conducting appropriate checks

If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, the sanctions may include:

  • a civil penalty of up to £20,000 per illegal worker
  • a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine
  • closure of the business and a compliance order issued by the court
  • not being able to sponsor migrants

The implications of employing illegal workers are significant, particularly given the inclusion of EEA nationals within the new immigration regime.

What steps should employers take?

You should:

  • Familiarise yourself with the right to work checks for EEA nationals, including what is needed now and what will be needed after 1 July 2021.
  • Look out for further government guidance in the coming months on conducting right to work checks from 1 July 2021.
  • Encourage all staff to apply under the EUSS in good time before 30 June 2021, if they are eligible.
  • Ensure you have in place reliable document checking systems to assist with carrying out right to work checks.
  • Put in place comprehensive and consistent right to work checking procedures, and ensure all necessary staff are appropriately trained in following the procedures.

Keep records of checks carried out for all staff and ensure these records are retained for two years post-employment.

If you would like further information, please contact Huw Cooke or a member of the Employment team. 

Key contact

Huw Cooke

Huw Cooke Senior Associate

  • Employment
  • Business Immigration Services
  • Data Protection

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