As 30 June 2021 draws closer, employers need to make sure that they are aware of and prepared for the changes to the rights of EU nationals that will come into effect at the end of the transition period.
From 1 July 2021, EU nationals will no longer have the right to live, work or study in the UK unless they have specific immigration permission enabling them to do so.
EU and Swiss nationals who were resident in the UK on or before 31 December 2020 have until 30 June to submit their initial application under the EU Settlement Scheme (“EUSS”). This is an important deadline; if the application is not submitted before this date, they will no longer have permission to remain in the UK and will have to make arrangements to leave.
In addition, where a UK employer hires an EU or Swiss national after 30 June 2021, they will be required to undertake a full right to work check on the individual. Prior to 30 June, employers have been able to rely on seeing and copying the individual’s passport or national identity card to meet the right to work check requirements.
Although employers are not required to check that their current EU or Swiss national employees have the appropriate immigration permission to work in the UK, it will be necessary to have policies and processes in place to undertake full right to work checks on EU and Swiss nationals from 1 July 2021.
The EUSS is open to EU or Swiss nationals who are able to provide evidence that they were present in the UK prior to or on 31 December 2020.
Under the EUSS, an EU or Swiss national who has been in the UK for five continuous years may be granted “settled status” (also known as indefinite leave to remain or permanent residence). Settled status entitles an individual to remain in the UK indefinitely, with unlimited permission to live, work and study in the UK. If the individual meets the requirements of the EUSS but does not qualify for settled status, they will be granted “pre-settled status”. This permission is granted for 5 years, during which they may live, work and study in the UK. Once someone with pre-settled status has completed five years in the UK, they may qualify for settled status.
EUSS applications can be submitted whilst the individual is in the UK or overseas. Provided the application is submitted before 30 June 2021, the EEA / Swiss national will continue to have the ability to live, work and study in the UK until the application is approved.
Employers are required to check the immigration status of employees to ensure they have the right work in the UK. Failure to do so may result in civil and / or criminal penalties against the employer if it is later discovered that the employee did not possess the necessary immigration permission to work in the UK.
From 1 July 2021, EU and Swiss nationals will also have to provide evidence of their immigration status in order for an employer to satisfy the right to work requirements.
EU and Swiss nationals are not issued with hard copy documents as evidence of their right to work in the UK; instead, employers will have to use the UK Government’s online right to work checking service. This involves the potential employee providing the employer with a share code, which they can obtain using a UK Home Office portal. Once the employer receives this information, they can enter it onto a separate on-line portal where they will be able to view a photograph of the individual together with confirmation that they have the right to work in the UK. The employer should review this photograph in the presence of the employee, or via a video call, so that they can verify the employee’s identity.
If no share code or documents are available, (for example, if the employee has an EUSS application in progress), employers should follow up with the Home Office’s on-line Employer Checking Service.
The employer must then print or save a copy of the on-line ‘profile’ page on the employer portal confirming the individual’s right to work. This must be stored securely, (electronically or in hardcopy) for the duration of the individual’s employment and for two years afterwards.
If the EU or Swiss national has pre-settled status, or other time limited immigration permission, it is important to diarise to check with the employee that, before their permission expires, they have made an application for settled status, or an application to extend their stay under another immigration category.
Employers are not required to obtain confirmation that their current EU or Swiss employees have applied, or obtained permission, under the EUSS, or another UK immigration category which enables them to undertake their current role. Provided that the employer has undertaken a right to work check which involved seeing and copying the EU or Swiss national’s original passport or national identity card (or a copy if the right to work check was done on the basis of the Covid-19 concession), it is not necessary to repeat the right to work
However, if an employer is concerned about checks that have been undertaken, or wishes to undertake an audit of HR files, retrospective checks can be undertaken, but it is important to ensure that this is done in a non-discriminatory manner. In other words, do not single out EU nationals for this purpose.
Employers have a duty not to discriminate against EU or Swiss nationals. Employers cannot require EU or Swiss nationals to show their status under the EUSS until after 30 June 2021. If employers wish to undertake a retrospective audit of files, this should be undertaken in respect of the entire workforce (not just certain nationalities), in order to avoid a charge of discrimination.