Update Right to work checks

We continue to receive queries regarding right to work checks following the end of the Brexit transition period. As covered in our annual update, the key message is actually that at this time, nothing has changed in respect of pre-employment right to work checks. The Home Office guidance remains that when checking an EU national’s right to work, you can use their share code to verify they have pre-settled or settled status, but it is also acceptable to just see their EU passport or ID card.

In particular, the Home Office has clearly stated that employers should not be demanding evidence of an application to the EU Settlement Scheme (EUSS) ahead of the application deadline of 30 June 2021.

We are in a strange period, as there will be EU nationals already in the UK, who are eligible for the EUSS but have not applied yet. There will also be new arrivals, who may have been allowed to enter freely as visitors, but who will require a visa in order to work. The Home Office does not currently require employers to distinguish between those two groups when carrying out pre-employment right to work checks.

In practice, if you know you are taking on a new recruit who is living abroad you will need to discuss visas with them and potentially sponsor them, but if someone presents themselves in the UK with their EU passport or ID card this is sufficient to meet current Home Office right to work check requirements up to 30 June 2021. Of course it will be in the individual’s interests to ensure they have properly obtained a right to work in the UK and we hope the number of EU nationals attempting to rely on their EU passport or ID card when they needed to get a visa will be very low.

The Home Office has not advised yet on what the requirements will be from 1 July 2021. However it seems logical that at that point, EU passports and ID cards will no longer be acceptable evidence of right to work. Instead we expect share codes for the EUSS, or a visa, will be required.

There is much speculation about whether the Home Office will then require employers to go back and review existing employees, recruited before 1 July 2021, to check that all EU nationals have applied to the EUSS. We believe this is unlikely to happen. However anything is possible and the reality is in this situation it will be for the Home Office to make the rules. We will continue to provide further updates as and when they become available.

We are aware that many employers are still struggling to implement compliant right to work checks during the pandemic. For guidance on what is required please see our previous article from last March.

Remember if you are checking an individual’s right to work online, you must use the employer’s portal.

Finally employers should be aware that the design of biometric residence permits (BRPs) has changed this year. This has not been particularly publicised by the Home Office, but you can see an example of the new BRP card at the top of page 2 of this document. 

If you are carrying out a right to work check and have any concerns about how to do this, or the validity of the documents provided, please do contact a member of our Immigration Team.

These articles are from the January 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Immigration Team.