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BREXIT: UK employers must check EU citizens’ right to work in UK

Out-Law News | 01 Nov 2018 | 9:14 am | 2 min. read

A UK government minister has said the onus will be on employers to ensure that EU citizens have the right to work in the UK after the withdrawal from the EU in March next year.

Giving evidence to the Home Affairs Select Committee, immigration minister Caroline Nokes said employers would have to carry out checks from March next year to make sure EU citizens applying for jobs had the right to work and had been granted ‘settled status’ in the UK.

Nokes said the government would have to “turn on a system that allows EU citizens to continue to come here post-March until such time as the new immigration system is implemented”, when free movement was ended after Brexit. That meant employers would need to carry out rigorous checks to prove an individual’s right to work.

However she admitted that it would be “impossible to differentiate between somebody who has been here and not yet applied for settled status and somebody who has just arrived”.

The settlement scheme for EU citizens will give them the right to remain in the UK. The scheme will be available to people from the European Economic Area (EEA) who have been living in the UK for five years before the end of the post-Brexit transition period, which is anticipated for 31 December 2020. Those who have not yet met the five-year residence requirement would be able to apply for 'pre-settled status', and to convert this to settled status once they have been living in the UK for five years.

A pilot of the scheme began in September, but so far only 1,000 people have tested it, according to Nokes.

She told the committee that there would be a “challenge” for those who had not yet applied for settled status but had a right to live and work in the UK to prove that, and said she would give the committee more information in writing.

Immigration law expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com, said Nokes’ comments “will have caused alarm among both EEA nationals and UK employers”.

“The suggestion that all EEA nationals might need to have their status checked by their employer immediately after 29 March 2019 was an unwelcome surprise,” Smith said. “All previous guidance from government sources has been that a no-deal Brexit would not dispense with the need for a transitional period as is currently proposed under an agreed deal.”

Smith said employers had been assuming that in the event of no deal, the UK government would nevertheless unilaterally implement a transition period similar to that which is currently envisaged for an agreed exit. That would give EEA citizens until June 2021 to obtain settled or pre-settled status, and would have meant no immediate impact for employers, who would have continued to carry out right to work checks as normal until 2021.

“The Migration Advisory Committee, when addressing the proposed post-Brexit changes to the immigration system in their report on EEA migration in the UK published last month, highlighted the need for a transitional period in the event of there being no deal on Brexit,” Smith said.

“The Home Office simply does not have the capacity to do other than operate a transition period. The number of potential applications all at the same time would otherwise swamp the Home Office.  The prolonged period for applications to be made has been set primarily for the benefit of the Home Office rather than for the individual applicants,” Smith said.

“We are therefore hopeful that the minister or her department will provide helpful clarification as soon as possible,” Smith said.