Right to Work Checks and New Immigration Rules

Due to the UK leaving the European Union as of December 31st, 2020, European nationals no longer have free movement into the UK. As a result, the government has put into practice new policies dealing with Right to Work in the UK. Let’s take a look at the practical implications for your Right to Work processes.

Bear in mind that it remains a legal requirement for you to conduct a Right to Work check on any new employee, no matter the nationality. To ensure that your new hire has the required status to work in the UK, you’ll need to have a consistently applied, thorough process to carry this out.

The biggest change for companies will be the different categorisation of EU nationals, which came into place on January 1st 2021. The government places EU nationals in different categories based on when they first arrived in the UK. This affects if they are eligible for the EU Settlement Scheme. We can summarise this by looking at the differences between arrival before January 1st and after it:

Any EU/EEA national that arrived before January 1st 2021 is eligible for the EU Settlement Scheme. These people must apply through that scheme to maintain their right to continue to live and work in the UK. The deadline for completing the application – which can be done online, at the line above – is June 30th, 2021. Unfortunately, they will lose their rights to remain and work in the UK if this deadline is missed.

EU nationals applying under the Settlement Scheme are further subcategorised into two statuses. If they have five years of continuous UK residence, they’ll be granted settled status. However, if they have less than the requisite five years, the Home Office will give them pre-settled status. Your prospective new hire can then share their status with you via a code. They can generate this through the government website, and allow you to confirm their Right to Work.

People who arrive after the 1st will not be eligible for the Settlement Scheme. Therefore, the government treats them the same as any foreign national, in accordance with UK immigration rules. There is a new points-based system in place to qualify for a visa. Alternatively, a company can sponsor them as a “Skilled Worker”.

EU nationals who arrived before the 1st have until June 30th to complete their Settlement Scheme application. Companies can also continue their previous Right to Work check process during this period without needing much adaptation.

During this grace period, you do not need to use the new categories to separate EU nationals that arrived before January 1st and those that arrived later. The government’s guidance advises that employees are not obligated to disclose whether they have applied for the Settlement Scheme or not. This includes the outcome of the application. The government does not require companies to keep any records regarding the applications.

EU nationals can continue to prove their Right to Work status via their passport or EU identity card until June 30th 2021. They can also use the code, as mentioned above. It’s important to remember that you cannot require an applicant to use the online code. The government considers this as discrimination against individuals who want to use ID documents.

However, once we enter July, ID documents such as an EU passport will no longer qualify to prove Right to Work status. From that point on, applicants will need to have the correct visa or their share code. This proves their membership of the EU Settlement Scheme.

Under current guidelines, there’s no need to perform retrospective checks on EU/EEA nationals who start work before July 1st. This is, of course, contingent on having carried out thorough Right to Work checks.

Right now, we don’t know the exact details on how the Home Office expects Right to Work checks to be carried out on EEA nationals after June 30th but will keep you informed. The Home Office has also stated they will give an update in advance, and you can see the latest guidelines here.

Credence’s processes will always be compliant with the latest requirements. However, if you would like a more in-depth explanation, please feel free to contact our office at any time, where an expert can advise you.