Right to Work Checks Following Brexit

By Kimberley Wallace

Senior HR Consultant

Employers are responsible for ensuring that they do not employ an individual who does not have permission to work in the UK. Failure to do so will render an employer liable to both civil and criminal penalties.

Penalties include being fined up to £20,000 per illegal worker and receiving an illegal working closure notice from the Home Office to shut their premises for up to 48 hours.

By carrying out right to work checks, employers may have a defence against liability for employing a migrant worker illegally.

Individuals in the UK Before 1 January 2021

European Economic Area (EEA) and Swiss nationals who were in the UK before 31 December 2020 have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK.

If employers already carried out a right to work check on these employees before 1 January 2021, they are not required to do another check.

Employers can continue to use EEA and Swiss passports and national identity cards as evidence of an individual’s right to work in the UK until 30 June 2021.

Employers can also use the Home Office’s online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK.

However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service. They can provide their passport or national identity card as an alternative.

This may create an issue for employers as they may not know if new employees were already living in the UK before 1 January 2021 and government guidance suggests that they may risk a complaint of race discrimination if they insist on seeing evidence of settled or pre-settled status before to 30 June 2021.

Individuals Arriving in the UK from 1 January 2021

EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status.

They will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK after January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.

Sponsorship Licence

Employers who wish to employ someone work for them from outside the UK, including citizens of the EU, Iceland, Liechtenstein, Norway and Switzerland who arrived in the UK after 31 December 2020 and do not have settled or pre-settled status or indefinite leave to remain will now usually be expected to have a sponsor licence.

How We Can Help

Whilst employers cannot provide individual employees with specific advice regarding applying for settled or pre-settled status, we can assist employers by providing a letter to give to their employees on what they need to do.

We can carry out electronic pre-employment background and right to work checks which, can include DBS checks where required.

We also provide HR systems to monitor your employees’ immigration status, keep copies of relevant documents for each employee, including passport and right to work information, track and record employees’ attendance, keep employee contact details up to date and report to UK visas and Immigration (UKVI) if there is a problem, for example if your employee stops coming to work as required as for the sponsorship licence.