Now that the UK has left the European Union (the EU) and the Brexit transition period has ended, there seems to be an increasing number of employers seeking advice regarding right to work checks and employing EU nationals.

The increase in employers seeking advice may be due to there being more people in the UK who potentially do not have the right to work in this country, coinciding with the end of free movement.

While some EU nationals will have the right to work in the UK (having secured their immigration status through the EU Settlement Scheme or otherwise), others will not. Further, some EU nationals may have a time-limited permission to work in the UK, which requires them to submit a subsequent application to the EU Settlement Scheme in order to secure their status long term. Employers need to make sure they know how to recognise the difference and how to deal with each group accordingly.

What employers need to know about Right to Work Checks

Employers are strongly advised to have robust systems in place to carry out adequate right to work checks in line with the law in this area. This involves training your staff on the process, keeping up to date with relevant changes, and seeking advice as and when required.

Legal requirements and penalties

It is a legal requirement for employers to make sure that prospective employees have the right to work in the UK before their employment starts. The risk to businesses is significant given the penalties that can be imposed for employing illegal workers.

The Home Office have been conducting more and more spot checks on businesses as part of their ‘Hostile Environment’ policy over the last couple of years, which seeks to make it increasingly difficult to work and reside in the UK illegally.

With employers facing civil penalties of up to £20,000 per illegal worker, making sure that you have carried out an adequate right to work check and therefore have obtained a statutory excuse, could mean the difference between being in business and not being in business. A valid statutory excuse will allow a business to avoid a civil penalty if it transpires that one or more of their employees have been working for them in the UK illegally.

Furthermore, an employer who knows or has reasonable cause to believe they are employing an illegal worker will be committing a criminal offence and can face up to 5 years in prison and/or unlimited fine. Despite this, many employers are not completely aware of all the aspects of carrying out a compliant right to work check and many are falling foul of the law in this area.

How do you carry out an adequate Right to Work Check?

This is essentially a three-step process:

  1. You must obtain the employee’s original identity documents;
  2. Check the documents are valid with the employee present; and
  3. Copy the documents, record the date of the check and keep the copy securely and in accordance with data protection principles.

A ‘repeat check’ is required for certain individuals depending on their status in the UK. It is important that this repeat check is carried out in time.

What are the rules for EU Nationals already in the UK?

EU Nationals already resident in the UK as of 11pm on 31 December 2020 will have until 30 June 2021 to protect their immigration status by submitting an application to the EU Settlement Scheme for pre-settled or settled status. These EU Nationals will continue to have the right to work in the UK until 30 June 2021 regardless of whether or not they have applied to the EU Settlement Scheme.

EU Nationals who arrived in the UK after 31 December 2020 will not have the right to work unless they have obtained a visa permitting them to do so, before arriving in the UK. Such individuals will not be able to submit applications to the EU Settlement Scheme. This means that between 1 January 2021 and 30 June 2021 some EU Nationals coming to the UK will have the right to work without obtaining a visa beforehand and some will not.

The Government has announced that there will be no change to right to work checks until after 30 June 2021 and employers will not be required to undertake retrospective checks on existing EU national employees.

After 30 June 2021, the new immigration rules surrounding recruitment from outside the UK will apply to EU nationals and non-EU nationals alike. Employers will need to hold a sponsor licence to employ overseas nationals coming to the UK to work from 1 January 2021, who do not hold a work permitted visa in a different category i.e. as the spouse of a British Citizen.

How has Coronavirus affected Right to Work Checks?

Since the Covid-19 outbreak the Government has temporarily adjusted the requirements of carrying out an adequate right to work check, with a view to making it easier for employers.

The following temporary changes have been made:

  • Job applicants can send scanned documents or a photo of documents for checks via email or a mobile app, rather than sending the original document;
  • Checks can now be carried out over video calls, during which the prospective employee must hold up the documents to the camera;
  • Employers will need to record the date that the check has been carried out and mark the documents as ‘adjusted check undertaken on [DATE] due to COVID-19’;
  • If the prospective employee is subject to a visa, employers will need to use the online right to work checking service to check their status during the video call. This service can be found here; and
  • Once we have received notification that the adjusted right to work procedure has come to an end (i.e. at the end of the pandemic) employers should follow the usual process. Employers will need to carry our retrospective checks on existing employees who started working for them during these measures. They should mark this check ‘[NAME]’s contract commenced with our company on [DATE]. The prescribed right to work check was undertaken on [DATE] due to COVID-19.’

Key points for employers

It is important to note that you can only obtain a “statutory excuse” should you be found to have employed an illegal worker, if the steps above are followed and an adequate right to work check is carried out. It is not sufficient to merely obtain the relevant identity documentation. It is also important to remember that a person’s immigration status cannot be ascertained merely by their appearance.

Employers must balance avoiding unlawful discrimination whilst trying to prevent illegal working. Carrying out right to work to checks on all new employees in the same manner is the safest way to make sure that the business is not being left open to the risk of huge fines and/or potential discrimination claims.

Next Steps

We are receiving many enquiries from employers on civil penalty notices, sponsorship licences, work visas and the future of employing EEA workers in the UK. Our Immigration team is experienced in advising and supporting clients on such matters. If these issues affect your business then do contact our Immigration team who would be pleased to assist you.