Right to work for EU nationals (includes EEA and Swiss 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 severe civil and criminal sanctions if they fail in their duty to prevent illegal working.  Civil penalties can be imposed of up to £20,000 per worker to employers who fail to carry out the checks correctly.

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

After the transition period, EU nationals became subject to immigration control which means they must either seek a visa or obtain status under the EU Settlement Scheme (EUSS) to live and work in the UK. The UK and EU agreed a ‘grace period’ from 1 January 2021 to 30 June 2021, to enable EU nationals (who are eligible) to register under the EUSS.

As it will be difficult for employers to make a distinction between EU nationals in the UK before the end of the transition and those who arrive in the grace period, employers must accept a national identity card or passport from EU nationals who they engage up to 30 June 2021.

Once the grace period has ended, employers must ask all EU nationals for their immigration status in the UK.

During the grace period from 1 January to 30 June 2021

In the latest Home Office guidance, they recognise that employers may want to ‘ensure the stability of their workforce’ by assisting their employees to obtain status in the UK.  It is now accepted that an employer can ‘invite those who already have status under the EU Settlement Scheme’, or ‘status under the points-based immigration system’, to evidence their right to work using the Home Office online service. The employee can provide a ‘share code’ to the employer who views the ‘right to work status. Employers cannot insist that EU nationals use the online service or discriminate against those who wish to use their passport or national identity card during the grace period.

Right to Work Checks from 1 July 2021

From 1 July 2021, employers will no longer be able to accept an EU passport or National Identity card as evidence of an EU individual’s right to work in the UK. Employers must request proof of their immigration status, which will either be under the EUSS or the new immigration system.

Retrospective checks

There is no mandatory requirement for retrospective checks to be undertaken on EU nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with right to work guidance.

The Home Office accepts that some employers may want to conduct retrospective checks, however, if employers chose to conduct retrospective checks for EU nationals, these must be undertaken in a non-discriminatory way.

If the EU national is unable to provide an employer with any Acceptable Documents from Annex A or B, because they have an outstanding application for status under the EUSS, or the new immigration system, employers must use the Employer Checking Service to establish a statutory excuse.

Irish nationals continue to have the right to work and prove their right to work as they do now, such as using their passport.

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 online 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 required.

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