All employers in the UK have a legal responsibility to prevent illegal working. In order to satisfy this requirement, it is important to undertake basic right to work checks before taking on any new employees, to make sure that they have the necessary immigration permission to work in the UK.
Provided that the necessary checks have been carried out, and a record has been kept of this, employers will have a “statutory” defence to a charge of illegal working. Failure to comply with the checking requirements can result in a civil offence under the Immigration, Asylum and Nationality Act 2006 being committed and a fine of up to £20,000 in the event that an employee is found to be working illegally. In addition, failure to comply can result in bad publicity and have an adverse effect on your licence to sponsor overseas workers in the future.
An employer commits a criminal offence under the Immigration, Asylum and Nationality Act 2006 if s/he knows or has reasonable cause to believe that s/he is employing an illegal worker. The penalty in this event is up to five years’ imprisonment and/or an unlimited fine.
Impact of Brexit – a summary
The UK left the European Union and free movement of people ended on 31 December 2020. There followed a six-month grace period during which relevant aspects of free movement law were retained to allow eligible EU citizens and their family members resident in the UK by 31 December 2020 to apply to remain here under the EU Settlement Scheme. This period ended on 30 June 2021.
From 1 July 2021, EEA citizens and their family members require immigration status to live and work in the UK. In most cases, they will need to show have applied for, or received settled or pre-settled status on or before 30 June 2021. If they arrived after 31 December 2020 they will need a visa in order to live and work in the UK.
The Home Office has made it clear that employers do not have to undertake retrospective checks on any EEA citizens who started working for you before 1 July 2021. You will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks you made complied with the guidance that applied at the time you made them.
However, many employers are choosing to undertake checks for their own piece of mind. This leaves employers facing the question of what to do if they suddenly discover that an employee does not have the necessary permission to live and work in the UK.
The Home Office updated its ‘Employers guide to right to work checks‘ on 1 July to reflect the new rules. This states that it is not necessary to immediately dismiss a member of staff who has not applied for settled or pre-settled status by the 30 June 2021 deadline.
Instead, employers can advise the employee to make an application under the settlement scheme within 28 days, and continue to employ them during this time.
However, this option is only available if the employee in question started working for you on or before 30 June. It does not apply to anyone who has commenced employment since 1 July 2021.
In addition, this flexibility only lasts until the end of this year. After 1 January 2022, if you discover that any employee does not have the right to work here, it will be necessary to take immediate steps to dismiss them.
Reasonable excuse for missing the deadline
An EU national who has missed the deadline for applying will have to persuade the Home Office that they had a ‘reasonable excuse’. It seems likely that applicants will rely on ‘compelling practical or compassionate reasons’ as this is a broad category and could cover anyone who was unaware of the need to apply, perhaps because they had no internet access, limited computer literacy or limited English language skills. It could also cover applicants who lacked the necessary evidence, for example, those who were unable to obtain a valid ID document in time and were unaware they could rely on an expired document.
Practical steps and tips
If you decide to give your employee time to apply for settled or pre-settled status there are a number of steps to follow:
We recommend that employers consider conducting retrospective checks. If you discover that you are employing an EU national illegally, it will give them an opportunity to rectify the situation and it will be less disruptive and provide reassurance for your organisation in the longer term.