Remember Brexit? It was Top of the Pops before Covid came along and stole the show! Brexit has had an impact on how you recruit your staff. As an employer, you now have a legal duty to prevent illegal working and could be subjected to penalties where you do not do so. Employers can be fined up to £20,000 per worker who does not have permission to work in the UK. To help, here are the answers to help ensure you don’t get penalised.

What is the current situation regarding European workers in the UK?

Freedom of movement between the UK and the European Union (EU) ended on 31 December 2020. Nationals from the European Economic Area (EEA) have until 30 June 2021 to apply for the right to work and live in the UK indefinitely. EEA nationals (with the exception of Irish citizens) wishing to enter the UK to live and work need to meet the requirements of the new UK points-based immigration system, in the same way as non-EEA nationals. The Right to Work scheme is a government requirement to ensure all workers have the right work in the UK before they start working for an employer. Documents to check vary, but can include passport, visa, National Identity Card etc.

What is the EU Settlement Scheme?

If individuals are EU, EEA or Swiss citizens, they (and their families) can apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If successful, the individual gains either Settled or Pre-Settled Status. Applications for the EU Settlement Scheme opened in March 2019 and will close on 30 June 2021. This means individuals have until 30 June 2021 to submit an application. Individuals must have been in the UK by 31 December 2020 to apply. Anyone after 1 January 2021 is not eligible to apply. Some exceptions apply, for example, Irish citizens or those who already have indefinite leave to remain may stay in the UK without applying.

What does ‘Settled Status’ mean?

Successful applicants who have five years’ continuous residence in the UK at the time they make the application will be granted ‘settled status’ meaning they will have indefinite leave to remain in the UK. Five years’ continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for 6 months in any 12-month period for five years in a row, with some exceptions.

What about ‘Pre-Settled Status’?

Those who were in the UK by 31 December 2020 but do not have five years’ continuous residence by the date they apply will get ‘pre-settled status’, which allows them to stay in the UK until they have reached the five-year residence point i.e. it allows them to stay for a maximum of five years and then they can apply for settled status.

How do my European staff apply?

Applications for the Scheme are made from the www.gov.uk website and it is free to apply. Applicants will need to provide a valid passport or national identity card, alongside a digital photograph of their face. Alternative evidence may be provided in certain situations. Applicants can:

• scan their document and upload their photo using the ‘EU Exit: ID Document Check’ app using an Android phone, or an iPhone 7 or above
• send their document in the post and upload their photo using the online application.

This evidence will need to be provided again to switch from ‘settled’ to ‘pre-settled’ status. Individuals can provide their National Insurance number for an automated check of their residence based on tax and certain benefit records. If this check is successful, the individual will not need to provide any further documentation. If not, the Home Office will notify them of the further information required instantly. Successful applicants can obtain a ‘share code’ to prove their immigration status to employers through the government website. Share codes can be used for prospective employers to check online if a job applicant has the right to work in the UK.

As an employer, what are my obligations?

As an employer, you have a legal duty to prevent illegal working and could be subjected to penalties where you do not do so. Employers can be fined up to £20,000 per worker who does not have permission to work in the UK. The employer must carry out the correct right to work checks to gain a ‘statutory excuse’ against the penalty. A criminal offence will be committed if you employ an individual and you have ‘reasonable cause to believe’ they do not have the right to work in the UK.

Should I be checking my employees have applied for Settled or Pre-Settled Status?

No. The government’s guidance is clear, there is no requirement for an individual to tell their employer they have applied, or of the outcome. The guidance also explicitly states employers should not check an employee has applied to the Scheme. This is because it could be viewed as being discriminatory on the grounds of race. We do suggest you remind the entire workforce (to avoid targeting certain groups and risking allegations of discrimination) of the requirement to apply to the Scheme by 30 June 2021 and provide the link for the government website for more information.

What about someone who entered the UK after 1^st January 2021?

EEA nationals (with the exception of Irish citizens) entering the UK to live and work must meet the requirements of the new UK points-based immigration system, in the same way as non-EEA nationals.

We have employees who have been working with us since 2015, we checked their documents when they joined for the right to work in the UK, do we need to check their right to work again?

It is not mandatory for you to carry out retrospective right to work checks on your existing EEA workers to ensure they have obtained settled / pre-settled status if you had already done so when they joined you. The onus is on the individual, not you as the employer, to make sure they can legally work in the UK (see Statutory Excuse below). If the individual does not have the correct status and this comes to the attention of the UK Immigration and Visa Service they may, at worst, be removed from the UK.

I suspect one of my workers does not have the right to work in the UK. How shall I handle this?

Meet with the individual and tell them, as their employer, you are obliged to check they have the right to work in the UK. Explain you do not have this evidence on file and ask them to provide the required documentation. If the evidence is not forthcoming, or the individual tells you they do not have it, then you should terminate their employment, ensuring you follow a fair and robust process (i.e. call Moss HR for advice!).

We have employees who have been with us for some time. We didn’t check their right to work when they joined. What should we do?

Whatever nationality, you should carry out checks for all of your workers. If you have not done so already, we suggest you do this for all employees.

What if, after 30 June 2021, we are employing a non-UK national who doesn’t have pre-settled/settled status and is not employed under our Tier 2 licence in the new points-based system? Will we be in breach of immigration rules and subject to a fine? 

If an employee has failed to apply to the Scheme by the deadline of 30 June 2021 or their application has been refused, they will be living and working in the UK illegally. However, it does not mean you are automatically in breach of the rules. The government is clear there’ll be no requirement for employers to carry out retrospective right to work checks for existing EEA citizen employees, after 30 June 2021, to confirm they have settled or pre-settled status. This suggests you would not be liable for a fine even if one of your EEA citizen employees lose their legal status. That said, the guidance does provide that you can choose to carry out retrospective checks, if you wish, to ensure the stability of your workforce. Do ensure any checks are done in a non-discriminatory manner – so don’t target individual groups, rather check the whole workforce. If an individual is unable to provide you with acceptable documents for whatever reason, contact the Employer Checking Service to obtain a statutory excuse. If, following a retrospective check, you discover an individual does not have permission to work, you will not have a statutory excuse, but you will be able to consider if the employment needs to be brought to an end. Please note: it’s a criminal offence to continue to employ a person if you know they don’t have permission to work in the UK so take advice immediately. Helpfully, the government has provided an employer toolkit which contains posters, factsheets and leaflets for employers to issue and/or display to raise awareness of Scheme. A link to the toolkit is here.

Are we allowed to help our employees make their application for Settled/Pre-Settled Status?

The guidance states, employers should be careful not to try and interpret the Scheme rules or provide any immigration advice to employees themselves. We suggest helping only with the assistance of an adviser with expertise in immigration law.

What do we do about EEA nationals joining us post 1 July 2021? What checks do we have to do?

From 1 July 2021, you will not be able to accept an EEA national’s passport or ID card alone as evidence of a permanent right to work in the UK for new employees. You will need to check proof of immigration status either under the Scheme (if the individual lived in the UK prior to 31 December 2020) or the new UK points-based immigration system (if the individual arrived in the UK after 31 December 2020). Please note: Irish Nationals continue to have the right to work and live in the UK without the need for permission, as a result of the Common Travel Area arrangement. Irish Nationals may demonstrate their right to work in the UK by providing their Irish passport.

What is the Points-Based System?

The UK has introduced an immigration system to treat all applicants equally, regardless of where they are from (excluding Irish citizens). Anyone coming into the UK for work, needs to meet certain requirements and ask for permission first. Under the points-based scheme, ‘Skilled workers’ who have a job offer from an approved employer sponsor will be able to apply for a visa to work in the UK. Employers will need to have a sponsor licence to hire most workers from outside the UK. If, as an employer, you want to sponsor skilled migrants (from the EEA or otherwise) and you are not currently an approved sponsor, you should consider getting approved now. Information is available on the government’s points-based system here.

How do I know what I need to check?

There is a handy online tool available Check if a document allows someone to work in the UK – GOV.UK (www.gov.uk) Please note: you should check this for ALL applicants, rather than targeting those who appear to come from outside the UK.

What method of checking documents should I use during the pandemic?

Due to the Covid-19 pandemic, temporary changes have been made to the way documents are checked. Guidance on how you should carry out checks is available here. This temporary process has been extended to 31 August 2021. The temporary process allows:

• Checks to be carried out via video call
• Applicants and current workers to scan or photograph documents using email or mobile phone app (rather than sending original documents)
• Employers to use the Employer Checking Service if applicants or workers cannot provide any accepted documents.

From 1 September 2021, employers should revert to carrying out face-to-face and physical document checks.

What further help is available?

An employer toolkit is available from the government, providing factsheets, posters and leaflets which you may find useful. A selection of social media materials is also available, along with details on how to request information in accessible formats. Please do contact Moss HR if you have any concerns regarding the status of members of your workforce. We’re happy to help and it is better to implement procedures in advance rather than dealing with difficult situations later. This advice is provided based on the current government guidelines.