Please note: Citation is not able to offer immigration advice to our clients. However, we can advise on the appropriate right to work checks. If you need further information, please visit the Home Office’s guide to visa sponsorship.
On 10 June, the Home Office published a draft Code of practice on preventing illegal working: Civil penalty scheme for employers on changes to right to work checks for EU, EEA and Swiss citizens (‘European citizens’) from 1 July 2021. You can read the full draft code here.
Updated guidance to employers on conducting checks under the new rules was published on 18 June 2021. The final version of the Code will be published shortly but it is not expected to change the position significantly. Keep an eye on your inbox, as we’ll update you as soon as the final version is published.
The Code will apply to all right to work checks carried out from 1 July 2021, including any follow-up checks for employees recruited prior to 1 July 2021.
European citizens who entered the UK by 11pm on 31 December 2020 have until 30 June 2021 to apply for Settled Status (indefinite right to live and work in the UK) or Pre-settled Status (five year right, which can be converted to Settled status when 5 years’ continuous residence has been established) under the EU Settlement Scheme.
We would advise all employers to remind all employees of this looming deadline. To help you communicate these changes, we’ve put together an example letter which can be found in Atlas here.
Although the Home Office has issued guidance on what employers should do when they identify that they have employed someone before 30 June 2021 who has failed to meet the deadline for applying under the Settlement Scheme, in these cases the individual must show that they had reasonable grounds for missing the application deadline and therefore individuals should ensure that they make their application before this deadline.
If employees have applied to the scheme by 30 June 2021 but their application has not been determined by that date, they will retain their right to work until such time as it has been determined, including the outcome of any appeal against a decision to refuse status.
Employers have an obligation to prevent illegal working and as part of this, they’re required to carry out checks that the people they employ have the right to work in the UK before they start their employment. Employers have both potential civil and criminal liability in this area. It’s a criminal offence for an employer to employ someone who they know, or have reasonable grounds to believe, does not have the right to work in the UK. It’s also a civil offence if an employer unknowingly employs someone who does not have the right to work. However, if an employer can show that they carried out the correct right to work checks at the appropriate time, they will have a ‘statutory excuse’ against civil liability (the statutory excuse does not apply to criminal liability). To qualify for this, the checks must be carried out before the employee starts work. The penalty for criminal liability can be up to five years imprisonment and/ or an unlimited fine. The penalty for civil liability can be a fine of up to £20,000 for each illegal worker.
European citizens can continue to use their passport and national identity card to prove their right to work up until 30 June 2021. However, from 1 July 2021, this will no longer be acceptable proof of their right to work in the UK. Up until 30 June, employers cannot require candidates to produce evidence of their status under the Settlement Scheme.
Home Office guidance does not require employers to conduct retrospective checks on European employees. Provided the correct right to work checks were carried out in compliance with the rules in force at the time they were recruited, an employer will have a statutory excuse should it later be discovered that the employee did not have the right to work. However, this is on the assumption that the employer did not actually know, or have reasonable grounds to believe, that the individual may not have the right to work (as otherwise the statutory excuse would not apply).
The employers’ guidance states that European nationals who have 'reasonable grounds' for missing the application deadline will be given a further opportunity to apply. Caseworker guidance has set out a wide range of circumstances where this might apply, such as where the individual lacked mental capacity or was unaware of the deadline for a variety of reasons. The guidance sets out transitional measures which can be followed up until 31 December 2021, in cases where the employee was employed prior to 30 June 2021 (they do not apply to individuals employed after this date). Under the transitional measures the employer must:
The new rules do not apply to Irish citizens, and they can continue to use their passport or passport card to prove their right to work.
From 1 July, the same rules will apply to all foreign nationals, including European citizens and employers will be able to check an individual’s right to work in one of three ways:
The new Code retains List A and List B documents, but changes have been made to the lists. The difference between the two lists remains that List A documents provide a statutory excuse for the entire duration of their employment as there are no restrictions on their permission to be in the UK. List B documents provide a limited statutory excuse as in these cases there are restrictions on the employee’s permission to be in the UK and to do the work in question. In these cases, follow-up right to work checks have to be undertaken. Key changes to note include the removal of European passports and national identity cards as proof of right to work (with the exception of Irish citizens who are specifically covered in List A), the addition of the Frontier Worker Permit in List B and the inclusion of evidence of status or a pending application under the EU Settlement scheme.
If you carried out your right to work checks before 1 July, the current rules will apply (passport or national identity card being acceptable proof of the right to work). It will be important to retain a clear record of when the check was carried out. However, any necessary follow-up checks after 1 July must comply with the new rules.
When an individual cannot provide the employer with any of the documents from List A or List B, but claims that:
The government introduced time-limited adjustments to the right to work checks process on 30 March 2020, allowing employers to carry out right to work checks virtually. Under the adjusted process, an employer should:
If you need help carrying out a right to work check you should call the Home Office Employer Enquiry helpline. They can be contacted on 0300 790 6268 and lines are open Monday to Thursday, 9am to 4:45pm and Friday, 9am to 4:30pm.
And remember… while we are not able to provide immigration advice, we can help you check you’re using the correct right to work checks. If you’ve got any questions about your duty as an employer hiring both EU and non-EU citizens, you can call our team 24/7 on 0345 844 4848.