What changes are being made to right to work checks in the UK from 1 July 2021?
Following ‘Brexit’ on 1 January 2021 citizens from the EU, European Economic Area (EEA) and Switzerland already living in the UK were given 6 months to apply through the EU Settlement Scheme if they wanted to continue living and working in the UK. This ‘grace period’ ended on 30 June 2021 and the government has published updated guidance on right to work checks from 1 July 2021. Here we answer common FAQs about the key right to work changes;
What was the position before 1 July 2021?
During the period 1 January 2021 to 30 June 2021 employers were able to continue to accept an EU, EEA or Swiss passport (or a national ID card) as evidence for right to work check purposes. Employers were not expected to differentiate between those who entered the UK before or after 31 December 2020.
What happens after 1 July 2021?
From 1 July 2021 employers are no longer able to accept an EU, EEA or Swiss passport (or a national ID card) as evidence of a right to work. New or prospective EU/EEA/Swiss employees will now need to provide right to work documents in the same way as non-EU nationals or, if they have applied through the EU Settlement Scheme, will have their right to work checked online using a ‘share code’ and the employee’s date of birth (more information can be found here). This share code is requested from the Home Office by the employee, who is then issued with an electronically generated code. The employee must provide you with the share code (which is only valid for 30 days) and a date of birth which you must then input into the Home Office online service. You will then be presented with a downloadable PDF certificate confirming whether the employee has the right to work in the UK or not. It should be noted that EU nationals who have had their application approved through the EU Settlement Scheme will not receive a physical card showing their settled or pre-settled status. Their status is only available to view online.
What about those who are awaiting confirmation of their EU Settlement Scheme application?
EU nationals who have applied for settled or pre-settled status before 30 June 2021 may still be awaiting confirmation of their EU Settlement Scheme application. They will continue to have the right to work until their application is finally decided. From 1 July 2021, if they have an outstanding application, they will receive a Certificate of Application or an email confirming receipt of their application. Certificates of Application may have been issued digitally and, if so, the employer can use the online right to work service to obtain evidence of their right to work immediately provided that the individual gives the employer a share code (as explained above).
If an individual only has a paper Certificate of Application or an email confirming receipt of their application, this will not of itself be sufficient evidence of a right to work. The employer must also submit an enquiry under the Employer Checking Service. The Home Office will then send the employer a Positive Verification Notice to confirm that the individual has the right to work. This will last for 6 months and should be retained along with a copy of the Certificate of Application/email confirmation. It is advisable to diarise a review of the employee’s EU Settlement Scheme application in good time before the Positive Verification Notice has expired.
What about Irish citizens?
The changes will not apply to Irish citizens. Under the Common Travel Area arrangement, British and Irish citizens can move and work freely and reside in either jurisdiction as before.
Do I need to carry out retrospective checks on my existing employees?
No. Employers do not need to carry out retrospective right to work checks on any EU, EEA or Swiss employees providing they were employed, and adequate right to work checks were carried out, before 1 July 2021.
What do I need to do now?
It is really important that employers are aware of these changes to the right to work checks. If you get it wrong, you face a civil penalty of up to £20,000 per person if you employ an illegal worker and have not carried out a correct right to work check. Make sure your HR team or those who deal with right to work checks are aware of the changes and happy they know what can and cannot be accepted as evidence.
How can Tozers help?
For further information or specific advice on right to work checks please contact the dedicated employment team.