Right to Work Checks After the End of the Transition Period

Tuesday 10 November 2020 - CBW

Removal of free movement and the extension of the new immigration system to all applicants, regardless of where they come from, will have a significant impact on how UK employers conduct Right to Work checks. These checks are legally required for every new employee to ensure they hold the appropriate right to work in the UK; to avoid discrimination the check must be carried out equally on all employees, including British citizens.

The Government produces and updates the Right to Work checklist, which is an extremely useful tool in ensuring the check is always done in compliance with the latest rules and the correct proof is presented and checked in line with the acceptable documents list. The checklist can be found here: https://www.gov.uk/government/publications/right-to-work-checklist.

Further details on how to conduct the check correctly are also included in the regularly updated Employer’s guide, available here: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide.

The check is relatively straightforward if the employee can produce a document from List A within the Employer’s guide.  List A includes a UK passport and other documents that attest to the individual’s right to permanently live and work in the UK. Currently “a passport or national identity card showing the holder is a national of a European Economic Area country or Switzerland” is accepted as a List A document, but we expect this will be changed during 2021, complicating the Right to Work checks for those with an EU passport.

EU nationals who already work for you

If you already employ EU nationals, you should already have the appropriate right to work check on their file from when they first started their employment. There is no need to repeat this check and requiring any additional information from existing employees who already passed the check could in fact be considered discriminatory.

EU nationals you hire from 1 January 2021 onwards

After the end of the Brexit transition period the Free Movement will cease, and EU nationals will require the appropriate permissions to work in the UK. Those who have entered the UK before 31 December 2020 will qualify for a status under the EU Settlement scheme which means they will not require a separate visa. However, because the deadline for applications under the EU Settlement scheme is 30 June 2021 (and not 31 December 2020) you cannot legally require them to show you their status under the EU Settlement Scheme until after 30 June 2021.

This means that any new hires from 1 January until 30 June will be subject to the same Right to Work checks as now, despite the significant change brought about by Brexit and ending the Free Movement.

Until 30 June 2021 job applicants can prove their right to work in the following ways:

EU, EEA or Swiss citizens can use their passport or national identity card

EU, EEA and Swiss citizens and their family members can use the online right to work checking service; if an applicant uses the online checking service this will generate a share code. You must then use the employers’ online service to check their right to work using this share code; the service can be accessed here: https://www.gov.uk/view-right-to-work

Non-EU, EEA or Swiss citizen family members can use an immigration status document listed in the right to work checks employer guide

Irish citizens will continue to prove their right to work in the UK as they do now

After 30 June 2021

After 30 June, the full effects of Brexit will also translate to the Right to Work checks. Job applicants will no longer be able to rely on their EU passport or identity card to prove their right to work in the UK. Instead they will have to provide proof of appropriate visa or status under the EU Settlement Scheme. These options will be fully updated on the Right to Work checklist when the rules change, so we always recommend that you use the latest version available to ensure you are compliant.

You should note that the EU Settlement Scheme status is an electronic only status and individuals will not be able to provide you with a physical proof. Instead they will be able to share a code for you to check their status electronically on https://www.gov.uk/view-right-to-work. Significant concerns have been raised about this electronic only status for various reasons, however, unless this is changed, you will have to conduct the check electronically and cannot refuse someone’s application based on them being unable to provide physical proof of their immigration status.

What next?

If you have any concerns about your existing Right to Work checking processes or you would like some help with ensuring these comply with the changing requirements going forward, please get in touch with out HR Consultancy team who will be happy to assist.