General Position on the right to work in the UK for EU Citizens after 31 December 2020
1. EEA and Swiss citizens residing in the UK by 31 December 2020 can apply for immigration status under the EU Settlement Scheme. This means that:
a. Those individuals who have resided in the UK lawfully for five years will be eligible for “settled status” and will be free to live and work in the UK indefinitely.
b. Those individuals who have resided in the UK for fewer than five years by the time they apply will be eligible for “pre-settled status” until they acquire the necessary five years to obtain settled status but will also be free to live and work in the UK during this time.
2. Applications for status under the EU Settlement Scheme must be submitted by 30 June 2021.
3. The exception to this position is Irish citizens who will continue to be able to live and work in the UK.
4. EEA and Swiss citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens. Employers will need a sponsor licence to hire most workers from outside the UK.
5. We have produced a fact sheet on the requirements of the new points based immigration system which you can review at the following link: https://taylorwalton.com/insights/articles/fact-sheet-for-employers-on-the-new-points-based-immigration-system
Right to Work Checks after Brexit – generally
1. Employers have an obligation to carry out right to work checks for all employees. Such a check must always be carried out before the employment commences and, if carried out properly, will give the employer a statutory excuse against potential illegal employment for the duration of the employment. The Government has issued a checklist for employers to follow to ensure the check is carried out properly.
2. Where a compliant right to work check is not carried out before the employment starts, employers can be subject to a civil penalty or even criminal prosecution where they are found to have illegally employed an individual.
3. The Government has issued guidance stating that employers will continue to be able to confirm an EEA national right to work using only their passport or national ID card until 30 June 2021. The guidance is available at the following link:
https://www.gov.uk/guidance/employing-eu-citizens-in-the-uk
4. From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status that will be either under the EU Settlement Scheme or the new immigration system.
5. The Government guidance specifically states, “You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021”. The Government guidance suggests that asking this question may amount to race discrimination.
Potential problems – existing employees
1. There is no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it does not need to repeat this. Nor is the employer required to seek confirmation that an employee has applied under the EU Settlement Scheme.
2. However, the Government is encouraging employers to provide information to existing employees about how to make an application under the EU Settlement Scheme and has produced a “toolkit” for employers to conduct appropriate discussions about this. It is advisable to conduct these conversations to demonstrate that steps have been taken to ensure that relevant employees apply for settled or pre-settled status.
Potential problems – new starters
3. The approach advised by the Government in relation to right to work checks up to 30 June 2021 may present an issue for employers with new starters between 1 January and 30 June 2021.
4. Although the employer must accept an EEA’s national’s passport or national ID card as evidence of their right to work until 30 June 2021 and should not make enquiries about whether they have applied under the EU Settlement Scheme, that individual will only be eligible to work in the UK if they were residing here by 31 December 2020.
5. This means that an employer could inadvertently employ an illegal worker by accepting an EEA national’s passport or national ID card as evidence of their right to work in the period up to 30 June 2021, despite the fact that the individual is not eligible to work in the UK because they were not residing here prior to 31 December 2020.
6. The Government guidance which allows the employer to rely on the passport or national ID card offers some reassurance to employers that they will not be penalised for doing so.
7. However, it should be noted that with any right to work check, the employer cannot ‘blindly’ copy a document when it is known that the individual does not actually have the right to work.
8. Where an employer knows or has reasonable cause to believe there is no right to work, in the worst-case scenario, they can be the subject of criminal prosecution as well as a civil penalty. If, for example, an employee states that they arrived in the UK after 31 December 2020 or if their references show (without a reasonable explanation) that they have not held employment in the UK prior to 31 December 2020, merely copying the passport or national ID card will not provide a defence against prosecution or a statutory excuse against a civil penalty. In these circumstances, further guidance should be sought.
9. How can you reduce the risk of employing an illegal worker?
a. Rather than relying solely on a passport or national ID card, employers can use the Government’s online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service and therefore this does not entirely remove the risk.
b. Rather than asking an employee about their immigration status, you can consider asking them how long they have been in the UK. This will help to establish whether they are eligible to make an application under the EU Settlement Scheme or not.
10. Further Government guidance is expected in relation to what checks will be required after 30 June 2021 where the employer has relied on an EEA passport or national ID card to establish the right to work, in the period after 1 January 2021.
Other issues to consider in relation to right to work checks
Covid considerations
11. Temporary measures are in place to enable right to work checks to be carried out by video call during the Coronavirus pandemic. Full guidance appears on the gov.uk website.
When to carry out the checks
12. All employers ought to be aware of the Home Office Code of practice for employers on avoiding unlawful discrimination while preventing illegal working (https://www.gov.uk/government/publications/right-to-work-checks-code-of-practice-on-avoiding-discrimination).
13. This Code essentially states that employers should not make assumptions about a person’s right to work or immigration status on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK and that employers should ask the same questions of all applicants regarding permission to work in the UK at the relevant stage of the recruitment process.
14. This issue is also addressed in the Equality and Human Rights Commission’s Employment Practices Code. This states that many people from ethnic minorities in the UK are British citizens or are otherwise entitled to work here and that employers should not make assumptions about a person’s right to work in the UK based on race, colour or national origin. Instead, it recommends that eligibility to work in the UK should be verified in the final stages of the recruitment process rather than at the application stage, to make sure that the appointment is based on merit alone, and is not influenced by other factors.
15. Both of the Codes suggest that right to work checks should be left to the final stages of the recruitment process (such as a second interview) to ensure that decisions about which candidate to short list or select for a role are based on merit. Questions regarding the right to work in an application form should be avoided although the application form can include a statement that candidates will be obliged to evidence their right to work if they reach the relevant stage of the recruitment process.
Concerns about sponsorship obligations
16. Some employers are reluctant to offer sponsorship under the new points based immigration system due to the costs involved. All employers should be aware that there is case law, which establishes that having a blanket policy that you will not accept job applications from / offer jobs to individuals who do not already have permission to work in the UK (and therefore need sponsorship) may amount to indirect discrimination. This is on the basis that the policy would have a disproportionate impact on non-UK citizens.
17. If you are advertising for a role that does not meet the requirements for sponsorship, you could state this on the job advert or application form to avoid having to deal with applications that cannot be progressed. It would be important to explain why the job does not meet the requirements for sponsorship by reference to the current sponsorship requirements to avoid allegations of discrimination.
18. If you are advertising for a role that would be eligible for sponsorship, you should not refuse to consider applications from candidates that may need sponsorship in the early part of the recruitment process taking into account the guidance referred to above. If a preferred applicant requires sponsorship and the employer does not have a sponsor licence and chooses not to apply for one, then the facts will have to be considered carefully in order to ascertain whether the decision is one that is legally justified.