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What are right to work checks?
Employers have an obligation to prevent illegal working in the UK. An employer commits a criminal offence if it knows, or has reasonable grounds to believe, that its employee does not have the right to work in the UK. More commonly, an employer commits a civil offence if it unknowingly employs an individual without the right to work in the UK and it does not have the statutory defence of having conducted a valid right to work check.
The right to work check is a three stage procedure of obtaining, checking and copying relevant ID documents in accordance with Home Office guidance. These checks should be done on all staff as it would be discriminatory to only target those that appear to be foreign. There is an incentive to do these checks as businesses can be fined up to £20,000 per illegal worker.
What checks traditionally were required for EEA nationals?
Prior to Brexit, EEA nationals had the right to live and work in the UK without a visa. All that was required to pass right to work checks was a passport or national identity card showing that the holder was a citizen of an EEA country or Switzerland.
Since Brexit, EEA nationals and their non EEA family members, that arrived in the UK on or before 31 December 2020 are eligible to apply for settled status (if they have five years of continuous residence) or pre settled status (if they have less than five years continuous residence). Up until 30 June 2021 EEA nationals can still satisfy right to work checks by providing their passport and there is no requirement for them to prove to employers that they have applied for settled or pre settled status.
What will be the position from 1 July 2021?
From 1 July 2021, EEA employees will need to show that they have settled or pre settled status or that they have applied for it and that they are either awaiting a result or their appeal rights have not been exhausted. This requirement does not apply to Irish nationals or EEA employees that are eligible to remain in the UK in another way (for example if they have dual British nationality or indefinite leave to remain).
The most common way that employees will be able to demonstrate their right to work is through the online ‘prove your right to work to an employer’ system. This enables applicants to provide employers with a share code and their date of birth, and employers can then check their status. Applicants with settled status will have a continuous right to work. Applicants with pre–settled status will have a temporary right to work and employers will need to follow up on this to confirm that the employee has obtained settled status when they have five years of continuous residence.
There will be many individuals that do not yet have their status because their application is in the system or they have not yet applied. Individuals with applications in the system should be able to provide a certificate of application or email from the Home Office which employers can use to confirm with the Home Office that the individual has a right to work while their application is being decided. In the case of individuals that did not apply in time, employers will not be able to satisfy right to work checks. However, Home Office guidance has confirmed that employers could signpost potential employees to make a late application. There is discretion for the Home Office to accept late applications and it may be that the individual will then subsequently be able to demonstrate to the business that they have a right to work.
Will employers need to conduct retrospective right to work checks on existing employees?
The Home Office guidance has confirmed that employers do not need to do this. Employers will be able to maintain their statutory excuse with a right to work check that was validly conducted at the time. This is welcome news because otherwise employers may have needed to conduct checks on all of their staff in order to not discriminate.
Since 1 January 2021, in most cases EEA nationals and their non EEA family members are no longer able to come to the UK and apply under the scheme directly. There are a number of exceptions including the ability for family members of EEA nationals already resident in the UK to apply under the scheme to join them.
However, EEA nationals can still arrive in the UK without any visa and, up until 30 June 2021, could satisfy right to work checks with their passports. This has put employers in a tricky position in some cases as the Home Office guidance has confirmed that while the employer can ask for evidence that the individual has applied under the settled status scheme, the candidate does not need to provide this. Additionally, EEA nationals could arrive in the UK after 1 January 2021, apply under the scheme but then only realise later when their application is rejected, that there is an issue.
What should employers do if they realise that their EEA employee has not applied under the Scheme in time?
As has been noted above, it is possible that an employer could employ an individual prior to 1 July 2021 in accordance with the right to work checks required at the time but then for it to subsequently transpire that the individual does not have the right to work. This could be because they have not applied under the settled status scheme or because their application has been rejected. An employer may become aware of this and would be rightly concerned of the potential for criminal liability in continuing to employ them.
However, employers can take comfort from recent Home Office guidance which states that “the criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the Right to Work Scheme. It is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with this guidance to support their employees to make an application to the EUSS”.
In addition, the Home Office has allowed a grace period until 31 December 2021 during which employers will not need to take immediate steps to cease the employment of individuals in these circumstances. Instead the employer should advise the employee to apply to the scheme within 28 days and provide a copy of the certificate of application. Once provided, the employer can use the Employer Checking Service with the Home Office to confirm that they have applied and have a temporary right to work. A follow up check should then be conducted before this temporary right expires. This is welcome news for both employers and employees. However, this is an area which is likely to cause confusion for employers for some time. Employers should review their policies and may benefit from legal advice on complicated cases.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information.