Right to work checks: Hiring from outside the UK in 2021

Blogs 7 Jan 2021

If you’re employing from outside the UK, learn the steps you need to take to ensure your applicants have the right to work in the UK under new immigration rules.


Freedom of movement between the UK and the EU has now ended and the UK has introduced a new immigration system.

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, new rules will apply from 1 July 2021. As an employer, you must have a sponsor licence and carry out a right to work check.

Our legal experts explain how the new rules might affect your recruitment plans and the steps you need to take to perform a compliant 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.

What’s changing?

If you’re employing EU, EEA or Swiss citizens, you’ll need to check the job applicant’s right to work in the same way until 30 June 2021.

After 30 June 2021, the new immigration rules for recruiting people from outside the UK will apply. “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.

The new system will not apply to those you already employed prior to 1 January 2021.

The EU settlement scheme

EU, EEA and Swiss citizens living in the UK by 31 December 2020 can apply to the EU Settlement Scheme. The deadline for applications for settled status is 30 June 2021.

If you have existing employees that this relates to, make sure they apply for settled status before the deadline. You don’t need to apply to the scheme if you’re a frontier worker.

You can’t require EU, EEA or Swiss citizen applicants to show you their status under the EU Settlement Scheme until after 30 June 2021, as you have a duty not to discriminate.

How does this affect Irish citizens?

There is no change to the way Irish citizens prove their right to work in the UK.

When should the right to work check be carried out?

You should carry out a compliant check before the employment commences, or you could face a penalty. You will not need to make retrospective checks for existing employees.

How can an EU, EEA or Swiss citizen prove their right to work?

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.

Until 30 June 2021, applicants can prove their right to work with:

If you’re unsure, you can access a right to work checks employer guide with 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:

  1. Ensure your business is ready to take on an employee
  2. Ask to see original documents
  3. Check the documents are valid
  4. Make and keep copies of the documents
  5. 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
     

Where can I find more information?

There is additional guidance for right to work checks during COVID-19, and you can view the full government guidance here. A comprehensive checklist for carrying out a check is also available.

Hiring talent from abroad?

We’re here to help. FSB members can access specialist immigration support as well as guidance and advice from our 24/7 legal and HR helpline.


 

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