Brexit: Right to Work Compliance – Employing EU and EEA Nationals

Employer duty to prevent illegal working

It is unlawful to employ someone who does not have the right to live and appropriate permission to work in the UK.  Employers could face potentially severe civil and criminal sanctions if they fail in their duty to prevent illegal working.

Right to work checks

In order to comply with this duty, an employer must:

• carry out Right to Work Checks on all prospective employees;
• conduct follow-up checks;
• keep records of all the checks carried out; and
• not employ anyone they know (or has reasonable cause to believe) to be an illegal worker.

Right to work documents for EU and EEA Nationals

Previously, there were no immigration controls for EU and EEA nationals and therefore an employer could have established EU nationality by checking either a passport or national identity card for that employee. A full list of other acceptable documents are set out in the guidance.  Production of any one of these documents gave the employer a continuous statutory excuse and the employer is not required to conduct any further checks during the employment.

As of 1 January 2021 EU and EEA nationals will need immigration permission to live, work and study in the UK. Freedom of movement for EU nationals has ended and they will be subject to immigration control.  If a business wants to employ EU or EEA nationals, they need to obtain a sponsorship licence to enable them to sponsor non-UK nationals to work in the UK (and pay the associated costs) or ensure that their staff (who are EU or EEA nationals) have obtained settled or pre-settled status via the EU Settlement Scheme (EUSS) and shared their status with their employer.

The EU Settlement Scheme (EUSS)

The EUSS is free of charge and open to EU and EEA nationals (and their family members) until 30 June 2021, and all EU nationals who want to remain in the UK must register by that date.  Applicants can apply by using either a laptop, Android device or iPhone.  If successful, applicants will be granted a settled or pre-settled status, which will enable them to work and study in the UK, to use the NHS, to access to public funds, and enter the UK using Egates.

EU and EEA nationals will access their status information via a secure online service, instead of being issued with a physical document.  They can share their status with their employers or other services as requried.

Employers will be able to conduct online immigration checks without delay, once their EU employees have shared their status code.

Right to work checks after from January 2021 – EU and EEA Nationals

Employers should now:

• carry out Right to Work Checks by accepting ID and passports from EU and EEA nationals up to 30 June 2021;
• conduct electronic checks with code shared from EU or EEA national (if provided);
• conduct follow-up checks with ALL EU and EEA nationals to obtain their right to work status from 1 July 2021; and
• keep records of all the checks carried out in order to show their compliance.

The key takeaway for all the employers who continue to employ EU or EEA nationals is that, as of 1 January 2021, it will be necessary to ensure compliance with their duty to prevent illegal working and conduct follow up checks for their EU/EEA national staff.  Note, that employers cannot demand that an EU national apply to the scheme or discriminate against any EU/EEA national for not providing their status.

Employers should refrain from asking for an EU/EEA employees’ status until 1 July 2021, however, I would recommend that employers ask new recruits the date of arrival in the UK.

If you have any questions about the content of this article or immigration more generally, please get in touch with me at [email protected].