Over the past few months, Black Mountain have issued newsletters regarding the ongoing Right to Work in the UK following Brexit.
As we enter the last week of June and the forthcoming 30 June deadline, we have issued the latest version of the Home Office Right to Work guidance which explains the changes to the way, from 1 July 2021, EEA citizens evidence their right to work. Included in this newsletter sets out the implications and late application considerations and process.
Changes to right to work checks
To meet your responsibility to prevent illegal working, all employers must carry out right to work checks, before employment begins, on their new recruits. An appropriate check will give the employer a ‘statutory excuse’ against liability for a civil penalty in the event you are found to have employed someone who does not in fact have permission to work in the UK. If the right to work check shows that an individual’s right to work is time-limited, a follow up check may also be necessary.
The latest version of the Home Office Right to Work guidance explains the changes to the way EEA citizens, from 1 July 2021, evidence their right to work. Importantly, these individuals will no longer be able to demonstrate their right to work by presenting their EU passport or national ID card and will have to provide other evidence of their settled status, see below.
(However, note that Irish nationals continue to be able to live and work in the UK and so are not impacted by the new right to work checks.)
EU settled status – deadline is imminent
EEA citizens who were resident in the UK before the end of 2020 are eligible to apply under the EU Settlement Scheme (EUSS) for settled status, which will enable them to continue to live and work in the UK. With only a few days left before the EUSS closes (the deadline is 30 June), employers are encouraged to have a ‘final push’ to encourage eligible staff to make their applications.
It may, however, be possible to make a late application under the EUSS if an eligible EEA citizen has ‘reasonable grounds’ for missing the deadline, as defined by the Home Office. Where an EEA citizen is considered to have reasonable grounds for missing the deadline, they will be given a further opportunity to apply. There is also a transitional measure available until the end of 2021, which may provide additional flexibility where the deadline is missed, see below.
If an EEA citizen has been granted settled status, they will have a continuous right to work in the UK. An EEA citizen with pre–settled status will have a time-limited right to work.
The Home Office has also recently published concessions in relation to maintaining continuity of residence and absences from the UK for Covid-19 related reasons, such as quarantine or travel restrictions. This may benefit those who are applying for settled status but who have been outside the UK for longer than the usually permitted maximum of 12 months.
For more information on the EUSS. Apply to the EU Settlement Scheme (settled and pre-settled status): Apply to the EU Settlement Scheme – GOV.UK (www.gov.uk)
EEA workers whose right to work checks were carried out before 1 July 2021
Employers would have a continuous statutory excuse against a civil penalty if they carried out an appropriate right to work check as required by the rules that applied at the time of the check. Up to 30 June 2021, an EEA citizen could provide their passport or national ID card to you to prove their right to work. The Home Office has confirmed that there is no requirement for retrospective right to work checks under the updated rules, to be carried out for such workers although employers could choose to do so.
New EEA recruits whose right to work checks are carried out on or after 1 July 2021
From 1 July 2021, EEA nationals will no longer be able to demonstrate their right to work by presenting their EU passport or ID card. Instead, EEA citizens who have made a successful application under the EUSS are granted a digital immigration status linked to their passport and they are able to use this to prove their right to work using the Home Office online service. The EEA citizen will provide employers with a ‘share code’ and their date of birth, which will enable you to check their settled status online.
Note that there may be some EEA citizens who did not apply under the EUSS but who can instead prove their right to work via other means including showing that they have ‘indefinite leave to remain’, a frontier work permit or other status under the new immigration Points-Based System.
What happens if your existing EEA worker did not apply for settled status by the 30 June deadline?
It is possible that after 30 June 2021 you will identify an existing EEA worker who has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK – because, for example, you choose to carry out a retrospective right to work check or an internal audit. In these circumstances, you do not necessarily need to take immediate steps to dismiss the worker. First, it’s possible that the worker has reasonable grounds to make a late application to the EUSS, as mentioned above. Further, under a new Home Office transitional measure in place until 31 December 2021, and provided your EEA worker was resident in the UK before the end of 2020 and so is eligible to apply under the EUSS, you should instead:
- Inform the individual they must make an application to the EUSS within 28 days and provide you with a Certificate of Application (CoA); and
- Obtain a Positive Verification Notice (PVN) from the Home Office Employer Checking Service (ECS) by providing relevant information and evidence.
The PVN, kept together with a copy of the individual’s CoA, will then provide you with a statutory excuse against a civil penalty for six months. You will need to conduct a follow-up check, before the expiry of the PVN, to maintain your statutory excuse until the time when your worker’s settled status is granted.
If your worker does not make the application to the EUSS within 28 days and they do not have reasonable grounds for making a late application, or if their application for settled status is unsuccessful, then you will not be able to continue to employ them.
EEA workers who have worked unlawfully in the UK from 1 January 2021
EEA citizens who entered the UK for the first time on or after 1 January 2021 are not eligible to apply under the EUSS. They will therefore not have the right to work unless they have another immigration status. This is the case even though an EEA passport or ID card is still acceptable evidence of a right to work up to 30 June 2021. The transitional measure discussed above will not apply to these individuals, which means that you cannot continue to employ them if you become aware of the issue. The Home Office has, however, indicated that it is not intending to prosecute employers who have employed EEA citizens in good faith, having completed a right to work check in the prescribed manner at the time, if they subsequently become aware that their worker does not have a lawful status in the UK.
Immigration Enforcement 28-day notice
From 1 July 2021, where Immigration Enforcement encounter EEA citizens, or their family members, who are working without the necessary immigration status, they will be given a written 28-day notice before any action is taken. This will allow individuals the opportunity to make a late application under the EUSS if they are eligible.
Adjusted right to work checks for Covid 19 – extension
Because of Covid 19, there are temporary changes in place to the way employers can check documents, including asking for documents digitally and making checks on a video call. These adjusted checks will now continue to be available until 31 August 2021. From 1 September 2021, employers will revert to face-to-face and physical document checks. An employer does not need to carry out retrospective checks on those who had an adjusted check between 30 March 2020 and 31 August 2021 (inclusive).
Action to take
• Familiarise yourself with the new Home Office guidance and in particular, the documents that are no longer accepted for right to work checks.
• Encourage all relevant staff to apply to the EUSS before the 30 June 2021 deadline if they have not already done so and offer support if needed.
• Amend your internal procedures for your right to work checks and new joiner documentation from 1 July 2021.
• Decide whether to carry out retrospective right to work checks for existing EEA workers. If so, carry these out if possible, by 31 December 2021 to make use of the Home Office transitional measure.
• Do not employ an EEA citizen after 1 July 2021 who neither has applied under the EUSS nor has an alternative UK immigration status.