This content was last updated 8 July 2021
Freedom of movement between the UK and the EU has now ended and the UK has introduced a new immigration system. As an employer, you must check that job applicants have the legal right to work in the UK before they start their employment. The EU Settlement Scheme ended on 30 June 2021 (although applicants may still apply after this date where they have a ‘reasonable excuse’ for making the application late) and transitional measures are in place until 31 December 2021.
Our legal experts explain how the new rules might affect your recruitment plans and the steps you need to take to perform a compliant right to work check.
What is a right to work check?
A right to work check is used by the Home Office to verify that workers have the right to work in the UK. You must check an applicant is allowed to work in the UK before you employ them, or you could face a penalty.
When should a right to work check be carried out?
You should carry out a compliant check before the employment commences, or you could face a penalty. There is no requirement to carry out retrospective checks for staff already employed prior to 1 July 2021.
New immigration rules for recruiting people from outside the UK now apply. If you’re employing someone from outside of the UK, you will need to apply for permission first, unless they are an Irish citizen. For EU, EEA and Swiss citizens arriving to the UK for work purposes from 1 July 2021, new rules now apply. You must have a sponsor licence and carry out a right to work check in accordance with updated Home Office guidance.
You are required to check that all EEA nationals and Swiss nationals have a valid UK immigration status under the new immigration regime: for those individuals, a valid passport or national identity card is no longer sufficient evidence to provide employers with a statutory excuse from a civil penalty if it later transpires an employee does not have the legal right to work in the UK.
“The new system will add a considerable amount of time and additional work for small business employers, so you will need to factor that into your recruitment plans to ensure you’re meeting all of the necessary criteria and checks that the Home Office has in place,” says Emelia Quist, Senior Policy Manager at FSB.
How does this affect Irish citizens?
There is no change to the way Irish citizens prove their right to work in the UK.
How can an EU, EEA or Swiss citizen prove their right to work?
To carry out a right to work check, you may either:
- check the applicant’s right to work online, if they’ve provided their share code, or
- Check the applicant’s right to work manually, by checking the applicant’s original documents
When asking for proof, you can check if a document allows someone to work in the UK using a handy tool on the government website.
If you’re unsure, you can access a right to work checks employer guide for more guidance.
How to carry out a right to work check
When checking a candidate has the right to work in the UK, you’ll need to:
- Ensure your business is ready to take on an employee
- Ask to see original documents
- Check the documents are valid
- Make and keep copies of the documents
- Record the date you make the check
When copying and storing the documents, it’s important to follow the rules on data protection.
What do I need to check?
There are several factors to consider when assessing evidence, including:
- The documents are genuine and belong to the applicant
- Dates have not expired
- Photos of the applicant are the same
- Date of birth is the same
Employers will have a continuous statutory excuse against a civil penalty if they carried out an initial right to work check correctly, such as where an EEA citizen provided their passport or national identity card to prove their right to work prior to 1 July 2021.
The EU Settlement Scheme and new transitional measures
The EU Settlement Scheme (EUSS) ended on 30 June 2021, however, applicants may still be able to apply in certain cases. Individuals who want to work in the UK may need to apply for a visa.
EEA citizens, Swiss nationals and their family members, who have made an application to the EUSS up to and including 30 June 2021 and have not yet been granted status, can continue to live in the UK as now and maintain a right to work until their application is finally determined. This includes pending the outcome of any appeal against a decision to refuse status.
EEA citizens with an outstanding application to the EUSS made up to and including 30 June 2021 will be issued with either:
- A Certificate of Application to the Scheme (CoA) or
- An email confirming receipt of their settlement application
Where this applies, as the employer you must request a right to work check from the Employer Checking Service (ECS), using the online form ‘request a Home Office right to work check’.
You must make a copy of their Scheme CoA or their settlement application email receipt and retain this with the response from the ECS to have a statutory excuse against liability for a civil penalty.
You should be mindful of the risks of indirect race discrimination claims if you reject recruits who are EEA and Swiss nationals with outstanding applications to the Scheme where the application was made prior to the EUSS application deadline.
A potential employee hasn’t applied for the EU Settlement Scheme and has no immigration status in the UK, what should I do?
If an EEA citizen applies for a job after 30 June 2021 but has not applied to the EUSS by the 30 June 2021 deadline and has no alternative immigration status in the UK, then they will not be able to pass a right to work check and should not be employed. If they believe they are eligible for the EUSS, you should signpost the individual to the EUSS for them to make an application.
Do I have to make retrospective right to work checks?
For employees who were employed prior to 1 July 2021, although there is no obligation to make retrospective right to work checks, it may come to your attention that an EEA citizen who is an employee has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK. This could happen where you have chosen to carry out a retrospective check, completed an internal audit or have been made aware that your employee does not have a lawful status in the UK in some other way e.g. you know the employee first started living in the UK after December 2020. Where the EEA citizen was employed by you in the UK, prior to the end of the grace period (30 June 2021), transitional measures apply until 31 December 2021.
What should I do under the transitional measures?
FSB members should always take legal advice via the FSB legal advice line prior to taking steps to dismiss an employee.
- Advise the individual they must make an application to the EUSS within 28 days. Your employee must provide you with a Certificate of Application (CoA). If they do not make an application to the EUSS within 28 days, you must take steps to cease their employment in line with right to work legislation (subject to following a fair dismissal process to avoid unfair dismissal claims).
- Once you have been provided with a CoA, you must then contact the Home Office Employer Checking Service (ECS) to confirm the individual has applied. When contacting the ECS, you may 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).
- Where an application has been made, the ECS will give you a Positive Verification Notice (PVN). Retaining the PVN and a copy of the individual’s CoA will then provide you with a statutory excuse against a civil penalty for six months. This allows sufficient time for the application to be concluded and enables the individual to maintain their employment with you during that time.
- Before the PVN expires, you must do a follow-up check with the ECS in order to maintain your statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, they can prove their right to work to you using the Home Office right to work online service.
- If the follow-up check confirms that the application is pending, you will be given a further PVN for six months and would then repeat step 4 until such time as the application has been finally determined. If the follow-up check confirms the application has been finally determined and refused, then you will not be issued with a PVN and you must take steps to cease the individual's employment.
- You are advised to record and maintain accurate records of checks and actions taken in regard to the Home Office guidance in the same way in which evidence is retained to demonstrate a statutory excuse.
For existing employees, to avoid unfair dismissal claims, you must follow a fair dismissal process when terminating their employment. FSB members may also refer to the fact sheet on ‘Some other substantial reason dismissals’ on the FSB Legal Hub for guidance on a fair dismissal process in this circumstance.
Where can I find more information?
FSB members also have access to the following templates and guides on the FSB Legal Hub:
- Template letter to new recruit requesting evidence of right to work
- Right to work checklist
- Fact sheet on preventing illegal working, which has further guidance on right to work checks for new recruits and what employers should do where they know or have reason to believe that an existing employee who is a Swiss or EEA national has not applied to the EU Settlement Scheme (EUSS) on time
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