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EU Settlement Scheme deadline: Right to Work Checks from 1 July 2021

The Home Office has published their updated guidance on carrying out right to work checks in light of the deadline to apply for the EU Settlement Scheme (EUSS) and the significant changes that accompany this.

The guidance is titled 'Employer right to work checks supporting guidance' and replaces previous guidance titled 'An employer's guide to right to work checks'.

Employers will need to check that workers from the European Economic Area (EEA) and Switzerland have the right to work in the UK from 1 July 2021.

It was also announced on the 23rd of June that the Government will give EEA citizens who fail to submit application to EU Settlement Scheme by 30 June deadline a 28-day notice to apply. This transitional measure has been put in place until 31 December 2021. There are limited exceptions when late applications will be considered, examples are:

• Victim of modern slavery or abusive relationship/situation
• Serious medical condition/treatment
• Physical or mental incapacity
• Other compelling reasons e.g. lack of internet or permanent accommodation

If an employer discovers that an EU national hasn't applied to the EUSS yet but joined on or before 30 June 2021, they can signpost them to the application and ask that they apply within 28 days. There is a specific process to follow for this to ensure they retain the right to work during the application and advice should be sought.

It is important to highlight that the transitional measure does not apply to new employees due to start work on or after 1 July 2021. Where an individual needs to make a late application to the EUSS in that scenario, the Home Office has advised employers not to start the employment until EUSS status has been granted and checked

Given that it is a criminal offence to knowingly employing an employee working illegally or having reasonable cause to believe that an employee is working illegally, employers have been particularly concerned about what to do if it comes to light an employee has not applied under the EUSS by 30 June 2021.

The new guidance will likely ease these concerns and will be comforting to employers. The guidance makes it clear that the Home Office does not intend to prosecute employers that have carried out correct and compliant right to work checks

Changes to acceptable documents:

For manual right to work checks, the key change to List A is the removal of EEA passports and ID cards and removal of permanent residence documents issued by the Home Office under EU law to EEA nationals (with the exclusion of Irish passports) as acceptable documents. Permanent residence cards issued by the Home Office under EU law to family members of EEA nationals have also been removed.

Unexpired documents issued by the Home Office to family members of EEA nationals, indicating the holders can stay in the UK indefinitely (a biometric residence cards (BRCs) confirming settled status under the EUSS) have been added to List A.

Changes to List B include: removal of residence cards issued by the Home Office under EU law to family members of EEA nationals, removal of EEA family permits which cease to be valid from 1 July and addition of unexpired documents issued by the Home Office to family members of EEA nationals, indicating the holders can stay in the UK for a limited period - in practice this means biometric residence cards (BRCs) confirming pre-settled status under the EUSS, as well as EUSS family permits.

The code of practice has also been amended to include the following acceptable documents as evidence of a right to work in the UK:

• documents issued to EEA/Swiss nationals and their family members by Jersey or Guernsey;
• frontier worker permits (which will evidence a temporary right to work in the UK); and
• Irish passports.

Practical tips for employers:

• Provide copies of the updated guidance for right to work checks from 1 July 2021 to all staff involved in HR and other employees involved in recruitment. Ensure that the amended List A and List B documents are included;
• Review and update any right to work check policies and checklists that you have in place;
• Continue staff communications in the brief window remaining, to encourage those eligible to apply to the EU Settlement Scheme or for frontier worker permits;
• Review historic right to work checks to identify any weaknesses which may undermine a statutory excuse
• Ensure that all offers of employment are made strictly conditional on the individual having, and retaining, the right to work in the UK.

For more information contact Amy Stokes in our Employment & HR department via email or phone on 0333 207 1157. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Employment & HR department here

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