Impact of Brexit: Checking European Economic Area (EEA) Nationals’ Right to Work in the UK
We all know that freedom of movement between the UK and the EU ended on 31 December 2021.
EAA nationals that were residing in the UK by 31 December 2020, still have until 30 June 2021 to apply for the right to live and work in the UK indefinitely under the EU Settlement Scheme (the Scheme) (subject to meeting certain requirements) or for pre-settled status (if they have resided in the UK for a period of less than five continuous years). A failure to acquire pre-settled / settled status will, at worst, lead to removal of the individual from the UK, as an “illegal immigrant”.
Since 1 January 2021, EEA nationals (with the exception of Irish citizens) wishing to enter the UK to live and work need to meet the requirements of the new UK points-based immigration system, in the same way as non-EEA nationals.
We set out below some common questions from our employer clients in relation to the impact that Brexit has had, and will continue to have, on right to work checks.
What if, after 30 June 2021, we are employing a non-UK national who doesn’t have pre-settled/settled status and is not employed under our Tier 2 licence in the new points-based system? Will we be in breach of immigration rules and subject to a fine?
If an employee has failed to apply to the Scheme by the deadline of 30 June 2021 or their application has been refused, they will be living / working in the UK illegally. However, it doesn’t follow that you’ll be in breach of the rules and subject to a fine if you continue to employ them. This is because the Government is clear that there’ll be no requirement for employers to carry out retrospective right to work checks for existing EEA citizen employees, after 30 June 2021, to confirm that they have settled or pre-settled status. This suggests that you would not be liable for a fine even if one of your EEA citizen employees lose their legal status.
That said, the guidance does provide that you can choose to carry out retrospective checks, if you wish, to ensure the stability of your workforce. However, you must ensure any such checks are done in a non-discriminatory manner (in accordance with the code of practice on avoiding discrimination). If an individual is unable to provide you with acceptable documents because they have an outstanding application to the Scheme or under the points-based immigration system, you will need to contact the Employer Checking Service to obtain a statutory excuse. You should note that, up to 30 June 2021, it’s not mandatory for individuals to share their immigration status via this service (see further below).
If, as a result of a retrospective check, it’s discovered that a staff member doesn’t have permission to work, you will not have a statutory excuse, but you will be able to consider if the employment needs to be brought to an end. Such a decision should be made promptly because it’s a criminal offence to continue to employ a person if you know they don’t have permission to work in the UK.
What if, on 1 July 2021, we do not have proof of someone’s pre-settled / settled status? Would we have to remove them from employment as they are no longer able to prove their right to work in the UK?
As mentioned above, there is no mandatory requirement for you to carry out retrospective right to work checks on your existing EEA workforce to check whether they have obtained settled / pre-settled status (although you can if you’d like to ensure the stability of your workforce). The onus is on the individual, not you as the employer, to make sure they can legally work in the UK. If the individual does not have the correct status and this comes to the attention of the UK Immigration and Visa Service they may, at worst, be removed from the UK.
Of course, if it comes to your attention that an individual is not (or may not be) working legally in the UK, as a result of carrying out a retrospective check or otherwise, you should investigate the matter and then, if you continue to have reasonable cause to believe they are an illegal worker, promptly terminate their employment.
Are we allowed to go through a process before 30 June 2021 to determine which EEA nationals have not applied for / do not have confirmed pre-settled or settled status so that we can help them?
We advise against that approach. The Government’s guidance to employers in relation to the Scheme is clear that there is no requirement for an individual to tell their employer that they have applied or the outcome of their application (a link to guidance is here). The guidance also explicitly states that employers should not check that an employee has applied to the Scheme. This is because it could be viewed as being discriminatory on the grounds of race.
We also advise against doing anything more than simply reminding your entire workforce of the requirement to apply to the Scheme (if relevant) by 30 June 2021 and pointing them in the direction of the Government’s website for further information. The relevant website link is here. By distributing this information widely, rather than targeting those who are believed to be non-UK nationals, the risk of any discrimination allegations is minimised.
Helpfully, the Government has provided an employer toolkit which contains posters, factsheets and leaflets for employers to issue and/or display to raise awareness of Scheme. A link to the toolkit is here.
One of our employees has asked us for assistance in filling out their application form for the Scheme. Are we allowed to assist them?
The Government’s guidance states that employers should be careful not to try and interpret the Scheme rules or provide any immigration advice to employees themselves. So, if you did want to get more involved with the application process itself in respect of a particular individual (for example, if they come to you for help), we advise doing so only with the assistance of an adviser with expertise in immigration law.
We have a new joiner, who is an EEA national and has been living in the UK prior to 31 December 2020. Her employment with us will commence before 30 June 2021. What right to work checks do we need to carry out?
Until 30 June 2021, you’re able to confirm an EEA national’s right to work in the UK using their passport or national ID card or, as the individual was already living in the UK pre-31 December 2020, they may be able to voluntarily disclose to you that they have already obtained settled / pre-settled status under the Scheme, via the online checking service.
What about EEA nationals commencing employment after 1 July 2021?
From 1 July 2021, you’ll no longer be able to accept an EEA national’s passport or ID card alone as evidence of a permanent right to work in the UK for new employees. You’ll need to see proof of immigration status either under the Scheme (if the individual lived in the UK prior to 31 December 2020) or the new UK points-based immigration system (if the individual arrived in the UK after 31 December 2020).
There is an exception to this rule: Irish Nationals continue to have the right to work and live in the UK without the need for permission, as a result of the Common Travel Area arrangement. As such, for right to work check purposes, Irish Nationals may continue to demonstrate their right to work in the UK by providing their Irish passport, after 30 June 2021
New guidance about how to conduct right to work checks on EEA nationals from 1 July 2021 onwards is expected during the course of June 2021.
Under the points-based immigration system, ‘skilled workers’ who have a job offer from an approved employer sponsor will be able to apply for a visa to work in the UK. So, if you’re planning to sponsor skilled migrants (from the EEA or otherwise) from 2021, and are not currently an approved sponsor, you should consider getting approved now. A link to the Government’s introduction to the points-based systems for employers is here.