Employers who discover EEA nationals without status under EUSS
If you discover one of your EEA national employees failed to apply to the EU Settlement Scheme, what do you do?
Employed on or before 30 June 2021
For employees who started work with you on or before 30 June 2021, and where you carried out a compliant right to work check, your employee can continue working for you provided you follow the transitional provisions in place until 31 December 2021.
If you discover that your employee has not submitted an EUSS application, you must:
- Advise the employee to make an application to the EUSS within 28 days; and
- Provide confirmation that they have made their application with either;
- An EUSS Certificate of Application (CoA); or
- An EUSS email or letter from the Home Office confirming receipt of their application
If your employee does not make an application within 28 days, you must take steps to terminate their employment in line with right to work legislation. Please seek legal advice in relation to the dismissal of an employee.
You must request a right to work check from the Employer Checking Service (ECS) using the reference on the CoA. You may also be asked to provide evidence of the start date of the individual’s employment (such as a copy of the initial right to work check).
The ECS must return a Positive Verification Notice (PVN) which must be retained and recorded together with the individual’s CoA and the initial right to work check carried out before 30 June 2021. These documents will provide the employer with a statutory excuse against a civil penalty for six months.
Your employee can continue to work until the PVN expires. It is recommended that the PVN date is recorded in a shared calendar, as a follow up check (or share from the individual) is required during the validity of the PVN to maintain a statutory excuse. You should remind the individuals to prove their right to work to you using the Home Office right to work online service once their applications are approved.
If the follow-up check confirms the application is still pending, you will be given a new PVN valid for another six months, which should be recorded and diarised for follow-up.
If an application is refused, you will not receive a PVN and you must take steps to terminate employment.
You must make copies of the COA and retain this with the response from the ECS, along with the initial right to work check carried out before 30 June 2021, to maintain a statutory excuse against liability for a civil penalty.
Employed after 30 June 2021
EEA nationals who have not applied to the EUSS, or who have submitted a late application and have not received a decision, are unlawfully in the UK. Employers must perform the appropriate right to work checks prior to an individual starting a new job which could also include using the ECS for candidates who have yet to receive a decision on their application. Please seek legal advice if you are unsure.
Immigration Enforcement 28-day notice
From 1 July 2021, if Immigration Enforcement encounter EEA citizens, or their family members, who are working without status, they will be issued a 28-day notice before removal action is taken. This provides individuals with an opportunity to make a late application to EUSS. Those who do not apply may risk denial to access services in the UK and deportation.
If you require any assistance on right to work challenges in your workplace or any information generally on illegal working in the UK. Please get in touch with Imelda Reddington [email protected] who heads the Immigration team.