UK right to work checks for EEA workers from July 2021

The EU Settlement Scheme, allowing EEA nationals who were in the UK by the end of 2020 to formalise their status, closes to most applications on 30 June 2021. Until this date, EEA nationals can present their passport or national ID card as evidence of their right to work in the UK. However, from 1 July 2021, EEA citizens and their family members will need an immigration status in the UK and will no longer be able to rely on their EEA passport or national ID card.

In anticipation of this, the UK Home Office has now published an updated draft code of practice on preventing illegal working (the code of practice). The code of practice takes effect on 1 July 2021, and is focused on the civil penalty regime only (criminal liability for illegal working can also arise). It has been published in draft form but is not expected to change. The more detailed employer guidance on right to work checks has also been updated.

Employer duties

Employers should complete pre-employment right to work checks against all recruits, to ensure that they have a right to work in the UK. Follow-up checks are required against those with time-limited permission to work in the UK. Where checks are completed in line with Home Office requirements, the employer will secure a statutory excuse to a civil penalty of up to £20,000 per illegal worker should that individual be, or become, an illegal worker.

There is no liability for failing to complete a compliant right to work check, but where this has not been done the employer will not have a defence to civil liability for illegal working.

What has changed in the code of practice?

The main changes in the updated code of practice relate to the right to work checks required against EEA/Swiss nationals and any third country family members from 1 July 2021.

Those EEA/Swiss nationals with a digital status under the EU Settlement Scheme will have to evidence this to a new employer through the online checking service. Whether they have settled or pre-settled status will determine whether they will be subject to a repeat right to work check during their employment. Those with biometric documents and frontier worker permits may also choose to use the online service. Manual checks can still be used for anyone with a physical document.

The code of practice has been amended to include the following acceptable documents as evidence of a right to work in the UK:

• documents issued to EEA/Swiss nationals and their family members by the Bailiwick of Jersey or Guernsey;
• frontier worker permits (which will evidence a temporary right to work in the UK); and
• Irish passports.

The ‘list A’ and ‘list B’ structure remains the same, although the lists themselves have been amended. It remains the case that list A documents will secure an ongoing statutory excuse provided they are checked and recovered correctly. List B documents evidence a temporary right to work, and so employers must diarise to complete the required repeat check.

One further change relates to the employer checking service (ECS), which is used to verify an individual’s right to work when they are otherwise unable to provide evidence of this. The code of practice states that if an ECS request is not considered within five working days – which is often the case – the employer will get an automated response confirming they may hire the individual. This automated response will provide a statutory excuse to illegal working. If a negative verification notice is subsequently received, the employer must carefully investigate before terminating employment.

Offers and contracts of employment should always be made strictly conditional on the individual having, and retaining, the right to work in the UK. Where an automated response is received, the employer should make clear to the employee that an outcome from the ECS is outstanding and if a negative verification notice is received this would impact their future employment.

Are employers required to conduct repeat checks on existing staff?

No. The code of practice and previous Home Office communications indicate that no retrospective checks will be required against existing EEA/Swiss national staff who commenced employment before 1 July 2021. Although many employers will welcome this from the perspective of administrative convenience, it does leave them with no legal basis on which to verify that EEA/Swiss staff have cemented their status and right to work in the UK beyond 1 July.

If employers are concerned as to the robustness of their previous checks against existing staff, and therefore whether they have a statutory excuse, they may ask existing staff to evidence having applied to the EU Settlement Scheme and secured a status under it, or obtained a frontier worker permit. The argument for doing so would arguably be increased where there would be significant operational or safety impact in the workplace were such individuals found not to have the right to work and, for example, were refused re-entry to the UK to work. Such checks would not provide a late statutory excuse, but could provide comfort as to the status of workers.

However, employers have no legal right to insist that existing staff have so applied, or indeed to conduct a repeat check against them, and so refusals from staff to cooperate would have to be handled carefully from an employment law perspective.

What if I find out an existing employee hasn’t applied to the EU Settlement Scheme by 30 June 2021?

The updated employer guidance on right to work checks states that transitional measures will be in place until 31 December 2021. In such circumstances, the employer will not have to terminate employment when it discovers that the employee has not applied to secure a status. The employer should:

• advise the employee to apply to the EU Settlement Scheme within 28 days and provide a copy of their Certificate of Application;
• once a copy of the Certificate of Application has been provided, use the Employer Checking Service to confirm they have applied. Tthe employer may be required to provide evidence of the individual’s start date, including a copy of the initial right to work check;
• if a Positive Verification Notice is received, a statutory excuse will be secured for six months, allowing for the application to be processed;
• a repeat check must be conducted before the Positive Verification Notice expires.

If the Home Office discover EEA citizens, or their family members, who are working without a status under the EU Settlement Scheme, they will be given a 28-day notice before action is taken. This will allow them the opportunity to make a late application, although it cannot be guaranteed that such an application will be accepted, depending upon the grounds for missing the deadline.

What if I completed a check before 1 July, but the individual starts employment after this date?

In these circumstances, the current code of practice would apply and so an employer would be permitted to accept, for example, an EEA passport. The updated code of practice applies to all right to work checks from 1 July 2021, including follow-up checks.

Employers may choose to take a cautious approach, applying the new requirements for all those commencing employment on or after 1 July.

How does this impact Covid-19 adjusted checks?

Employers should keep an eye on the end of Covid-19 adjusted right to work checks. A temporary concession under which a statutory excuse is available following checks performed based on scanned copies or photos of original documents over a live video link, with the originals in the possession of the individual, is currently due to come to an end on 31 August 2021, with full checks required from 1 September. The end of this concession has now been pushed back twice following delays to the easing of lockdown in England.

Practical tips

• continue staff communications in the brief window remaining, to encourage those eligible to apply to the EU Settlement Scheme or for frontier worker permits
• review your internal right to work guidance policies, checklists and other documentation to ensure it is updated in time for the changes taking effect
• ensure your teams responsible for checks are up to speed on the changes and trained accordingly on when to do them, what they can accept and how to complete a check
• review historic right to work checks to identify any weaknesses which may undermine a statutory excuse
• consider whether you wish to seek comfort as to the status of existing staff, even where no retrospective check is required. Carefully think through the business reasons for carrying out retrospective checks on current staff and take a note of these. You may need to rely on them later if you need to take formal action against an employee who has not applied for the EU Settlement Scheme or refuses to provide proof of this.