Post Brexit right to work checks

The Brexit transition period ended on 31 December 2020, now EEA and Swiss Nationals (and their families)*, arriving in the UK from 1 January 2021 do so under the UK immigration laws and not under the EU free movement.

We are now approaching the end of the 6-month grace period, which commenced on 1 January 2021 and ends on 30 June 2021. EU nationals who were resident in the UK by 31 December 2020 have until the end of the grace period to apply to the EU Settlement Scheme (EUSS) in order to preserve their right to live and work in the UK. The grace period protects the rights of those EU nationals who were lawfully resident in the UK prior to 31 December 2020 and have yet to be granted settled or pre-settled status under the EUSS.

On 17 March 2021 the Home Office helpfully updated their Employer’s Guide to Right to Work Checks. The updated guidance confirms right to work checks for EU nationals will not change until 30 June 2021. Until then, EU nationals can continue to use their passport or national ID to evidence their right to work in the UK.

It has been confirmed employers will not be expected to differentiate between EU nationals who arrived before the end of the transition period and those arriving during the grace period. There is also no mandatory requirement for retrospective checks to be undertaken on EU nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with the present right to work legislation and updated guidance.

From 1 July 2021 employers may wish to carry out retrospective checks. If they do so, they must ensure the checks are conducted in a non-discriminatory manner. The Home Office have confirmed they will produce a new guidance on how to conduct right to work checks on EU nationals from 1 July 2021 and the guidance will be produced in advance of this date. Although, it is currently unclear how far in advance of this date it will be published.

Employers cannot insist EU employees apply to the EUSS but they are encouraged to provide information about the EUSS to their staff.

The Home Office have published a helpful Employer Factsheet dealing with common questions surrounding EU nationals and right to work checks. The factsheet can be viewed here.

If you require advice regarding right to work checks or any other aspect of Home Office compliance, please click here to view our immigration page.

*Now referred to collectively as EU nationals throughout this blog