EU Settlement Scheme and Right to Work checks
Frequently asked questions
With the EU Settlement Scheme application deadline coming to an end on the 30 June 2021 and as freedom of movement has ended on the 31 December 2021 as well as the temporary adjustments to the right to work checks, employers are facing a new reality of Right to Work checks. We have put together some frequently asked questions to assist you with the challenge ahead.
Right to work checks:
Q: Can you still check the right to work via video call?
A: Yes, the Home Office has just announced, that temporary changes to right to work checks, which were due to end on the 20 June 2021, will stay in place until 31 August 2021. From the 1 September employers will have to conduct physical document checks. Live video calls will continue to be permitted provided the employer has the candidate’s original documents, or if conducting an online check, the video feed must be live while the employer is viewing the online status.
Q: Do you need to go back and conduct in-person right to work checks for those that were conducted via video call in accordance with the temporary adjustments due to COVID-19?
A: No, retrospective checks are not required for right to work checks conducted within the adjusted measures period, provided the initial check was carried out in accordance with the COVID-19 guidance.
Q: Should you hold documents proving contractors right to work or is it sufficient that the company of the contractor verifies these checks?
A: If you are a sponsor, there is a positive duty to prevent illegal working, so we recommend that sponsors obtain right to work documents for all workers. Employers generally should not be sanctioned for failing to obtain a right to work documents from contractors or self-employed, however we recommend that anyone who works on your site, can provide a document to demonstrate a right to work in the UK.
Q: Do I need to check the right to work of University interns and independent contractors?
A: Employers will only be liable for those they employ under a contract. We recommend obtaining right to work documents for all workers regardless of worker status, particularly if you are a registered sponsor. For University students, you should have an arrangement with the University for their placement and you should also be aware of the university term dates, as many students have restrictions to the number of hours they can work.
Q: Do you need to conduct right to work checks for your existing EU employees from 1 July 2021 – after the EU Settlement Scheme deadline?
A: Retrospective checks are not mandatory, but you can ask employees to share their code ‘for the stability of your business’. i.e. in case they will not be eligible to register for EUSS and potentially be working illegally from 1 July. If you do checks, keep in mind that you cannot discriminate against any employees.
Q: Should you terminate employment on the 1st of July if your employee does not provide their share code to access their settlement status?
A: EEA citizens employed prior 30 June 2021:
If they have not applied to the EUSS by 30 June 2021 the employer does not need to cease employment at the time of identifying the missing status. They should advise their employee that they must make an application to the EUSS within 28 days and provide the employer with a Certificate of Application (CoA). If they do not make an application within 28 days, the employer must take steps to cease their employment.
Once CoA has been received by employer, they must contact the Home Office Employer Checking Service (ECS) to confirm the individual has applied.
Where an application has been made, they will receive a Positive Verification Notice (PVN). This, together with the CoA will prove a statutory excuse for 6 months, allowing sufficient time for the application to be concluded.
EEA citizens after 30 June 2021:
Appropriate right to work checks need to be carried out.
Q: Is it sufficient that my employee tells me that they have applied to the EU settlement scheme?
A: You should follow up, asking them to provide the share code, once they have their status or use the ECS to check their application status.
Q: My employee has permanent right to stay in the UK, is that enough?
A: If their permanent residence was granted under EU law, they must also apply to the EU Settlement Scheme to swap that status for Settled Status. The permanent residence document (issued under EU law) will not be valid for travel after 1 July 2021.
Q: If the individual has pre-settled status and if the online check does not show the expiry date, how can I know when to diarise and recheck if they have obtained settled status?
A: You can either ask your employee to provide the dates and diarise a follow up check or conduct another check after 1 July, when we expect the system to be updated.
If you have any questions about the contents of this article or if you need any assistance, please contact [email protected] in the Immigration team at FSP.