Revised guidance from the Home Office

An update on Brexit and Right to Work Checks

An update on Brexit and Right to Work Checks

The UK has left the European Union (‘EU’) and the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 brought EU free movement to an end on 31 December 2020. This was followed by a grace period of six months. During this time, relevant aspects of EU free movement were saved to allow eligible EU, EEA and Swiss nationals (‘EU Nationals’) and their family members resident in the UK to apply to the EU Settlement Scheme (‘EUSS’). The grace period ended on 30 June 2021.

The Home Office has now revised its guidance, ‘Employer’s Guide to Right to Work Checks’. Read the Home Office guidance now.

Right to work checks for EU nationals from 1 July 2021

EU nationals cannot rely on a passport or national identity card to evidence their right to work. They are required to provide evidence of lawful immigration status in the UK in the same way as other foreign nationals (unless this can be otherwise proven by demonstrating status under EUSS). Most EU nationals will prove their right to work using the Home Office online right to work service.

There is no requirement for employers to undertake retrospective checks on EU Nationals who entered employment up to and including 30 June 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty, if the initial right to work check undertaken, was in line with the relevant guidance at that time. Citizens of the Republic of Ireland are still able to prove their right to work using their Irish passport or Irish passport card.

The majority of EU Nationals will prove their right to work in the UK by demonstrating status under EUSS. Some EU nationals will not have status under EUSS, but will be able to evidence their right to work using specified documents, if they cannot use the online system, such as:

  • Frontier Worker Permits
  • Service Provider of Switzerland visas
  • Outstanding applications to UK EUSS
  • Outstanding applications to Crown Dependency EUSS
  • EEA citizens with Indefinite Leave to Enter/Remain
  • Points-Based System visas

EU nationals in the workforce who do not have the right to work

Until 31 December 2021, employers who find that an EU national – present in their workforce on or prior to 30 June 2021 – doesn’t have the right to work (i.e. applied to the EUSS by 30 June 2021), needn’t cease employment at the time this is identified. However, those employers should:

  • Advise the employee to make an application to the EUSS within 28 days and obtain a Certificate of Application (‘CoA’).
  • Once CoA is provided, contact the Home Office Employer Checking Service (‘ECS’) to confirm application.
  • Obtain and retain Positive Verification Notice (‘PVN’) (providing statutory excuse against a civil penalty for six months).
  • Follow up with ECS before PVN expiry to confirm if employee granted status.
  • If status ‘pending’ ECS will provide new PVN (providing further statutory excuse against a civil penalty for six months).

For EU nationals employed on or after 1 July 2021, the employer must perform the appropriate right to work check, in line with the relevant guidance at that time.

Where an EU national has ‘reasonable grounds’ for missing the EUSS application deadline, they still have an opportunity to apply. Home Office caseworkers have been provided with ‘non-exhaustive’ guidance setting out appropriate circumstances (e.g. lacked the mental capacity to apply).

It should be noted that the criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance. It isn’t intended for employers who employ EU nationals in good faith, having completed a right to work check in accordance with the relevant guidance at that time. Nor is it intended for employers who have employed those EU nationals and are now supporting them in making an application to the EUSS in the prescribed manner.

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