After the UK left the European Union on 31 January 2020, freedom of movement between the UK and EU continued until 31 December 2020 (known as the transition period). This meant that EU citizens (which includes EU, EEA and Swiss nationals) residing in the UK by 11pm on 31 December 2020 were able to apply for either settled or pre-settled status under the EU Settlement Scheme ("EUSS") and have until 30 June 2021 to make their applications.
EU citizens arriving in the UK from 1 January 2021 will be subject to the new immigration rules and will be required to apply (and meet certain eligibility requirements) under the UK points based immigration system ("PBIS"). They will also need a job offer from an approved sponsor licence holder to apply for a Skilled Worker visa under the PBIS and will need to obtain 70 points (made up of 50 mandatory points and 20 tradeable points).
Current position: right to work checks until 30 June 2021
Until 30 June 2021, the Government has confirmed that EU citizens can use their passport or national identity card to evidence their right to work. This includes those who arrived before the end of the transition period (ie 31 December 2020) and those arriving within the grace period (ie between 1 January and 30 June 2021). Employers are not expected to differentiate between those individuals. In fact, should an employer "request" an individual to provide anything other than a passport or national identity card (such as their status under the EUSS or the PBIS), this could be regarded as discriminatory. Employers can still, however, "invite" those individuals to evidence their status using the online service.
The Government has also confirmed that employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with the right to work legislation and guidance. Should an EU citizen be unable to provide an employer with acceptable right to work documents because they have an outstanding application for status under the EUSS or the PBIS, an employer will need to contact the Employer Checking Service to establish a statutory excuse.
There is also no mandatory requirement for retrospective checks to be undertaken on EU citizens who were employed on or before 30 June 2021. However, if employers "choose" to carry out retrospective checks, they must ensure that they do so in a non-discriminatory manner. Further guidance on avoiding discrimination while preventing illegal working can be found here.
What happens on 1 July?
On 10 June 2021, the Government published a draft Code of Practice that sets out the changes to right to work checks from 1 July 2021.
This confirms that from 1 July 2021 EU citizens (excluding Irish citizens) will no longer be able to use their passport or national identity card to prove their right to work. Instead, they will need to provide evidence of their lawful immigration status in the UK and demonstrate their right to work either under the EUSS or the PBIS.
The Code of Practice also confirms that the Home Office is increasingly providing digital evidence of immigration status rather than issuing physical documents, and some individuals will only be able to prove their right to work online (such as under the EUSS). Employers can therefore carry out right to work checks using the online checking system and will need:
- A share code (which the employee will need to share with them)
- The employee's date of birth.
Should an individual not have a UK immigration status that can be shared digitally, employers can still check the original documents by carrying out a manual right to work check. The draft Code of Practice also sets out a revised list of acceptable documents (List A and List B). Employers will need to obtain one or more documents from either List A or List B (depending on the employee's circumstances) in order to establish a statutory excuse.
What you need to do now
- Consider applying for a sponsor licence if you intend to employ EU or non-EU citizens
- Familiarise yourself with the right to work check requirements, both during the grace period and from 1 July 2021
- Encourage your existing EU staff to apply under the EUSS in good time before 30 June 2021 (if they are eligible) and consider inviting those individuals to evidence their status using the online service
- Put in place comprehensive and reliable right to work checking procedures, and ensure all necessary staff are appropriately trained.
We have a team of immigration specialists who can provide support and advice on any immigration issues you may have. If you are considering applying for a sponsor licence (or a visa under the PBIS), if you have any right to work queries or if you require advice on any other immigration issues, please contact Alan Kennedy or a member of the team, who will be happy to help.