September 8, 2021

Right to work checks: Key developments and actions for employers

The Home Office has just published updated guidance on right to work checks in light of the impending deadline for applications under the EU Settlement Scheme. Here we summarise the latest developments and the various actions which employers may wish to consider.

Latest developments

  • 30 June 2021 marks the end of the post Brexit “grace period”. From 1 July 2021, EEA and Swiss nationals (and their family members) will have to demonstrate their right to work in the United Kingdom in the same way as third country nationals. They can no longer rely on their national identity documents and their right to freedom of movement under EU law.
  • Whilst retrospective right to work checks are not required, existing EEA and Swiss nationals may lose their right to work if they cannot satisfactorily evidence that they were present in the United Kingdom by 31 December 2020 or have status under the EU settlement scheme.
  • The list of acceptable documents for establishing the statutory excuse has been updated.
  • The electronic right to work checking scheme forms an essential part of the regime from 1 July 2021.
  • This is all in the context of the modified right to work checks introduced during the COVID pandemic.

What do you need to do?

  • Issue further communications to your staff reminding them of the need to apply under the EU settlement scheme by the deadline of 30 June 2021.
  • Take steps to identify the immigration status of EEA/ Swiss workers and family members (ideally as part of a wider, all-staff right to work audit).
  • Where individuals may have missed the deadline for applying to the EU settlement scheme, assess whether they can make a late application under the transitional measures.
  • Ensure any EEA/ Swiss nationals and/ or family members who commence employment on or after the 1 July 2021 have the appropriate right to work in the United Kingdom either under the new immigration system (such as a points-based visa or frontier worker permit) or the EU settlement scheme.
  • Take steps to identify those who have pre-settled status under the EU settlement scheme and ensure that an appropriate follow-up right to work check is diarised.
  • Make provisions so that any EEA/ Swiss national and family members are required to notify you immediately if they receive notice of immigration enforcement from the Home Office.
  • Ensure the relevant recruitment/ HR teams and line managers are familiar with and understand the new requirements.
  • Ensure you have robust, effective and legally compliant systems in place.

How can we help?

  • We can assist with a right to work audit, advise on the different documentation which employees may have provided and the status of employees.
  • We can review your existing recruitment and right to work processes to ensure that these are compliant and will highlight any potential immigration issues at the earliest possible stage mitigating any risk.
  • We can advise on how you should operate your recruitment and right to work processes to avoid potential pitfalls and risks (including the risk of discrimination).
  • We can assist you to manage any immigration and associated employment risks.
  • We can provide bespoke assistance and guidance on dealing with complex issues such as non-EEA family members of EEA/ Swiss nationals; EEA/ Swiss nationals who may not have yet accessed or are unable to access the EU Settlement Scheme; frontier workers and business travel from and within the EU.
  • We can provide training and guidance to familiarise you with the new requirements and ensure you are fully equipped to deal with the regime and frequently encountered issues.
By Gareth Wadley and Oliver O’Sullivan

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