From 1 July 2021 it will no longer be possible for European Economic Area (EEA) citizens (other than Irish nationals), to rely on their EEA passports or their national identity cards as proof of their right to work within the UK.
The vast majority of EEA citizens will now prove their right to work by using the Home Office online checking service. Workers who have made a successful application under the EU Settlement Scheme (EUSS) will have been granted their new status digitally and will be able to provide a share code alongside their date of birth which will enable their employer to check and verify their Home Office immigration status via the online service.
EEA workers who have not been granted a status under the EUSS (e.g. those entering the UK for the first time from July 2021) will need to show an alternative immigration status which allows employment, such as a Skilled Worker or a Spouse visa.
Employers must carry out pre-right to work checks to ensure that they are not penalised for employing a person illegally. The maximum penalty is £20,000 per illegal worker. Employers need to carry out checks before employment begins and also carry out repeat checks, whenever a person has a time-limited right to stay in the UK, no later than the date that their leave is due to expire.
Prior to 30 June 2021 it was effectively impossible to employ an EEA worker illegally. Going forward employers will risk civil penalties if they fail to conduct initial and repeat checks on EEA workers.
EUSS scheme workers will either have a permanent right to live and work in the UK (i.e. Settled Status) or else they will have a right to live and work in the UK for 5 years (i.e. Pre-Settled Status), with the opportunity to apply to remain beyond that date if they qualify. When an employer recruits an EEA worker who has pre-settled status, they should diarise to carry out a repeat check when the 5-year period is due to expire.
In relation to a company’s existing employees (i.e. those employed on or before 30 June 2021) the Home Office have advised there is no reason to conduct a new check, so long as the employer previously conducted a right to work check in accordance with the rules that applied at the time (which would have allowed the employer to rely on an EEA passport/ identity card).
If an employer discovers that they are employing an EEA worker who does not have any lawful status because they have failed to apply for the EUSS in time, the government are asking employers to encourage them to apply for EUSS and indicate that if the employer follows their guidance they will not need to dismiss them. If an EEA citizen has missed the EU Settlement Scheme application deadline then they will be given a further opportunity to apply so long as they have reasonable grounds for missing this deadline.
We are advising employers on the new ‘Right to Work’ regime and what it means for them, if you would like to know more, please do not hesitate to get in touch.
