What steps am I required to take around right to work in the UK checks for European nationals following Brexit for existing and new employees?
Employers must continue to carry out right to work checks for all workers before employing them, as was the case prior to Brexit:-
Position on right to work checks during the transition period up to 31 December 2020
European Economic Area (“EEA”) nationals and their family members who continue to have a right of residence in the UK under EU law throughout the transition period do not fall within the definition of those who are required to have leave to enter or remain. This means that they do not require permission to work in the UK and an employer cannot be penalised for employing them, regardless of whether or not right to work checks have been carried out. However, as stated at the outset it is important that an employer has correctly conducted the right to work check and crucially, can evidence this as they will potentially benefit from the ‘statutory excuse’. This means that if they are later found to be employing an illegal worker, they may be excused from a civil penalty and so do not receive a fine which is currently set at up to £20,000 per illegal worker.
EEA and Swiss nationals who are in the UK before the end of the transition period 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.
Please see link below to the government EU settlement scheme employer toolkit:-
Right to work checks during the 6 month ‘grace period’ (1 January 2021 to 30 June 2021)
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 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.
There will be no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it will not need to repeat this when the transition period ends.
EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ends on 31 December 2020, 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 on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.
EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether or not they require a visa. The Home Office has yet to provide guidance in relation to checking the right to work of employees in this category.
Note that the position will be different for Irish nationals who are generally treated as free from immigration time restrictions from the date that they enter the UK. Irish nationals can apply for status under the EU Settlement Scheme if they want to, but there is no need for them to do so.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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