Changes coming into force on 1 July 2021 will affect how a UK employer should conduct 'right to work' checks for EEA citizens.

On 22 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 legislation in the UK.

The key changes are:

• From 1 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
• To prove their right to work from 1 July 2021, individuals will need to provide a share code and their date of birth which will enable employers to check their Home Office immigration status via the online service
• 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 employers 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; 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.

Employers are not required to carry out retrospective checks on EEA citizens who were employed up to and including 30 June 2021.

Where checks are carried out before 1 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 30 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.

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 31 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 1 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 on the Gov UK website.

GOT QUESTIONS?

If you're a BPCA member with questions about any of the above, please get in touch with us and we'll try to find the answer for you.

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Source: Online