On 1 July 2021 the grace period for EEA nationals to make an application under the EU Settlement Scheme came to an end, and EEA nationals and their family members require immigration status in the UK, in the same way as any other foreign national.

Updated Home Office guidance about right to work processes also came into effect. 

Employers must conduct right to work checks on all employees in accordance with the requirements set by the Home Office.  If an employer does not and they are found to be employing someone who does not have the right to work in the UK, then they can be liable for a civil penalty of up to £20,000 per illegal worker.  In very serious cases employing someone illegally can also amount to a criminal offence.  

What do the changes mean for right to work checks for new employees?

1. Lists A and B of acceptable documents to demonstrate right to work have been updated, to reflect the fact that EEA nationals (with the exception of Irish nationals) can no longer evidence their right to work through the production of a passport or identity card.

2. It is anticipated that most EU nationals with status under the EU Settlement Scheme will evidence this using the online checking service.  The prospective employee must provide their new employer with a 'share code' that is used to access the Government's 'View a job applicant's right to work details' service.  This service can be used to check an employee's status under the EU Settlement Scheme.  It is important (as it is for manual checks) to follow the requirements for this check, and to keep the evidence in the format prescribed in the Home Office guidance.  If these requirements are not followed, then the check will not be valid.  It is up to employees whether they want the employer to conduct a manual check or to use the online system.  Whilst they can be encouraged and supported to use the online service the employer cannot prescribe this.  In addition, the online check is only available for certain categories – it is not available, for example, for British and Irish nationals.

3. For candidates who have an outstanding application to the EU Settlement Scheme where the application was made on or before 30 June 2021 the individual's right to work continues pending consideration of their application.    For online applicants they should be issued with a digital Certificate of Application which should enable them to provide a prospective employer with a 'share code' to use the online checking service referred to above.  If they applied via a paper application, it may instead be necessary to use the Employer Checking Service if the Certificate of Application has not yet been received.

4. Some EEA national candidates who would have been eligible may have missed the 30 June 2021 deadline to make an application under the EU Settlement Scheme.  Such individuals will not be able to pass a right to work check unless they have an alternative immigration status, and so should not be employed. It may be that such an individual would be able to make a late application under the EU Settlement Scheme if they can demonstrate that they have reasonable grounds for missing the deadline.   You could, therefore, signpost a candidate to make such an application, and if that is successful then employ them.  It may be that you would also consider sponsoring the visa of such an individual as a skilled worker, if you have a sponsorship licence and the role is eligible for sponsorship.

What do the changes mean that employers need to do in relation to existing employees?

1. There is no requirement to conduct retrospective right to work checks.  Provided that you have conducted a right to work check in accordance with the process prescribed by the Home Office at the time of the individual's recruitment the requirement to conduct a right to work check will have been met – there is no need to redo the checks.

2. If you do conduct retrospective right to work checks or a right to work audit, of if you otherwise discover that an EEA national has not made an application under the EU Settlement Scheme and so does not have the right to work, then the Home Office has implemented a transitional measure that employers may follow until 31 December 2021.  The process only applies to EEA nationals employed by the end of the grace period (30 June 2021).  In these circumstances employers should advise the employee that they must make an application to the EU Settlement Scheme within 28 days.  The Home Office Guidance then sets out the process for the employer to follow to conduct a check using the Employer Checking Service, to verify the individual's right to work.  Any positive verification notice will last for six months, after which a repeat check should be conducted. If the individual does not make their application and it is not possible to verify their right to work, then steps should be taken to terminate the individual's employment.

Key additional points to remember in relation to right to work checks

Just a couple of additional key points to remember:

• It is important not to discriminate against any race or nationality in relation to right to work processes.  Right to work checks should be carried out for everyone in a consistent way regardless of race or nationality.
• An employee or prospective employee's consent must always be sought before checking their immigration status using any of the Home Office's online checking system or Employer Checking Service.  This is because you will be providing the employee's data to the Home Office.

Action points

• If you haven't already, update your right to work processes, and consider rolling out update training for those who conduct right to work checks.
• Encourage EEA nationals to update you when they have received settled or pre-settled status under the EU Settlement Scheme, and diarise when pre-settled status will be coming up for renewal so that repeat right to work checks can be undertaken in accordance with your usual processes.
• Consider whether your business requires a licence to sponsor skilled workers if you don't already have one.