Whilst employers have always been well advised to check that all employees have the right to work in the UK, the way in which this is checked will change from 1 July 2021 for EU, EEA and Swiss nationals (European Nationals).

This is because, as a consequence of the UK’s exit from the European Union, European Nationals no longer benefit freedom of movement and they must therefore obtain further immigration approval to remain and work in the UK.

For most European Nationals, this will likely involve showing prospective new employers that they have obtained status under the EU Settlement Scheme (EUSS).  For those who arrived in the UK on or after 1 January 2021, it is likely that some other immigration approval which entitles them to work in the UK (for example, a work visa under the UK’s points-based system) will need to be obtained.  

Who do we check and why?

As always, employers should complete right to work checks for all new recruits - irrespective of their nationality - to confirm that they have a valid right to work in the UK and minimise discrimination risks.  Checks should be carried out before employment commences. If the worker’s right to work is time-limited, the employer will also need to complete follow-up checks in accordance with Home Office guidance to ensure that the worker has retained their right to work.

Completing right to work checks in line with the Home Office requirements gives employers a defence against the civil offence of employing an illegal worker, which can result in fines of up to £20,000 per illegal worker.  If a compliant check is carried out, this would give an employer a “statutory excuse” against said fines if the worker in question turn out to be working illegally.  Whilst failing to complete a compliant right to work check is not, by itself, an offence in the UK; carrying out a compliant check is the only way that a statutory excuse can be obtained.  It is therefore crucial that checks are carried out.   

How do I carry out checks and what is changing on 1 July 2021?

The Home Office guidance contains two lists which set out the documents that employers can accept as evidence of right to work in the UK: List A and List B (the Lists). If an employee can produce a document on List A, this usually means that they have an indefinite right to work in the UK and no further right to work checks are required. If a document on List B is produced, this indicates that the employee has a temporary or time-limited right to work in the UK, and as such a follow-up right to check will be required before the expiry of their current immigration permission.  

Up until 1 July 2021, European Nationals were able to evidence that they had the right to work in the UK simply by providing their passport or national ID card. These were List A documents.  However, now that free movement has ended the Lists have been updated.  From 1 July 2021, European Nationals will no longer be able to rely on their EEA passport or national ID card, as this is no longer acceptable evidence of a right to work in the UK and has been removed from the Lists. European Nationals will be required to provide alternative documentation from the newly updated Lists to evidence a right to work in the UK.

For most European Nationals, the new process will involve checks of their Settled or Pre-Settled status under the EUSS.  However; individuals with these permissions have not been issued with physical proof of status by the Home Office.  Instead, their immigration status is stored digitally on Home Office systems.  Employers will be able to check the status of individuals with EUSS status digitally via a Home Office online checking service. This online checking service will confirm the employee’s immigration status and any relevant time limits on their ability to work and will be acceptable for statutory excuse purposes.

Are employers required to conduct retrospective checks on existing European National staff?

No. The Home Office have confirmed that no retrospective checks will be required against existing European National staff who commenced employment before 1 July 2021.

What if an existing employee hasn’t applied to the EUSS by 30 June 2021?

The Home Office have announced that further transitional measures will be in place until 31 December 2021 which will allow eligible applicants to make a late application for Settled or Pre-Settled Status. As such, the employer will not immediately have to terminate employment if it discovers that the employee has not applied to secure EUSS status.

The Home Office guidance states that employers in such circumstances should:

  1. Advise the individual that they must make an application to the EUSS within 28 days and ask them to provide a copy of their Certificate of Application (CoA);
  2. Once the CoA has been shared, the employer should use the online Employer Checking Service (different to the online checking service referred to above) to confirm that the individual has applied under the Scheme;
  3. If a Positive Verification Notice is received, this is essentially confirmation that the Home Office has received the individual’s application and that they can continue to work for the employer pending a decision on their application. Once a Positive Verification Notice is received, a statutory excuse will be secured for six months, allowing for the application to be processed;
  4. A repeat check via the Employer Checking Service must be conducted before the Positive Verification Notice expires; and
  5. Repeat step 4 until such time as the application has been finally determined. If EUSS status is issued to the individual, then this should then be checked and kept on file.

If an employee fails to make an application after they have been advised to do so, the employer may need to consider termination of employment to prevent illegal working. Employers may wish to seek legal advice to mitigate the risk of employment claims such as unfair dismissal or discrimination.

What if I completed a check before 1 July, but the individual starts employment after this date?

In these circumstances, the Home Office’s pre-1 July 2021 Right to Work guidance would apply and so an employer would be permitted to accept, for example, an EEA passport. The updated guidance will apply to all right to work checks carried out from 1 July 2021, including follow-up checks.

Covid-19 adjusted checks

Employers should remember that there are adjustments in place due to the Covid-19 pandemic which allow employers to carry out right to work checks virtually. At the time of writing, the period for adjusted checks has been extended and is due to expire on 31 August 2021, with in person checks required from 1 September 2021.  It is, of course, worth noting that these adjustments only apply to the “manual” process of checking physical documents and is unlikely to have a substantial impact on online checking processes.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions

Date published

01 July 2021

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