BusinessGuard Issues Advice to Changes in Legislation on the Right to Work in the UK

On the 22nd June 2021 the Home Office issued a communication informing employers that their Employer's Guidance has been updated to reflect upcoming changes in right to work in the UK legislation. These changes, due to come into force on 1st July 2021, specifically affect how an employer will conduct right to work checks for EEA citizens.

BusinessGuard has broken down the newly published guidance and highlighted key changes you need to be aware of:

  • From 1st July 2021, EEA citizens require immigration status in the UK and can no longer rely on an EEA passport or national identity card to prove their right to work
  • The majority of EEA citizens who were successfully granted immigration status under the EU Settlement Scheme can only prove their right to work using the Home Office online right to work service. This can be found here.
  • To prove the right to work from 1st July 2021, individuals will need to provide employers with a share code and their date of birth which will enable you to check their Home Office immigration status via the online service available on GOV.UK
  • If an EEA citizen has been granted 'Settled Status' by the Home Office, they will have a continuous right to work in the UK
  • If an EEA citizen has been granted 'Pre-Settled Status' by the Home Office, they will have a time-limited right to work, and you must carry out a follow-up check. The Home Office online service will advise when a follow-up check must be carried out
  • For any EEA citizen who has not obtained a Settled Status or who cannot use the home office online system, they can evidence their right to work using other specified documents. These include:
    • Frontier Worker Permits
    • Service Provider of Switzerland visas
    • Outstanding applications to UK EUSS
    • Outstanding applications to Crown Dependency EUSS
    • EEA citizens with Indefinite Leave to Enter/Remain
    • Points-Based System visas

Download the PDF for the full updated list of acceptable documents for manual Right to Work in the UK checks.

Download the PDF

Is there a need for retrospective checks on current staff?
No, employers are not required to carry out retrospective checks on EEA citizens who were employed up to and including 30th June 2021, even in instances where they used their passport or national identity card as proof of their right to work.

Where checks are carried out before 1st July 2021, EEA citizens may continue to evidence their right to work using their EEA passport or national identity card.

EEA Citizens without lawful immigration status after 30 June 2021
If an EEA citizen applies for a job with you after 30 June but has not applied to the EU Settlement Scheme by the deadline, and has no alternative immigration status in the UK, then they will not be able to pass a right to work check and should not be employed.

There may be situations after 30th June 2021 in which you identify an EEA citizen in your workforce who has not applied to the EU Settlement Scheme by the deadline and does not hold any other form of leave in the UK. They may tell you that they have missed the deadline through no fault of their own and you may believe it to be disproportionate were you take immediate steps to cease their employment.

It is worth being mindful that where an EEA citizen has reasonable grounds for missing the application deadline, they will be given a further opportunity to apply. Guidance has been published setting out a wide range of circumstances which will normally constitute reasonable grounds for a person's failure to meet the deadline.

Please contact your HR Advisor for further advice should you be faced with an employee in this situation.

Temporary Adjusted Checks
Finally, because of coronavirus, there are temporary changes to the way you can check right to work documents. These changes will remain in force until 31st August 2021 and allow employers to carry out right to work checks remotely.

To carry out a temporary adjusted check, you must:

  • ask the worker to submit a scanned copy or a photo of their original documents
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details

From 1st September 2021, employers will revert to face-to-face and physical document checks.

A full copy of the employer's right to work guidance can be accessed here.

If you need help with any of the above please contact the advisors at HAE EHA BusinessGuard on 0121 380 4612, or email businessguard@hae.org.uk and one of the team will be happy to help.