Right to work checks: What has changed?

Authors: Victoria Welsh and Kinka Tonchev, Fragomen

The Home Office has published updated Guidance on right to work checks for employers. The new guidance contains significant changes to the UK's right to work check system following the end of the Brexit transition period on 31 December 2020 and the subsequent grace period for checking the right to work of EEA and Swiss nationals (collectively referred to as "EEA nationals" in the rest of this document) on 30 June 2021. Below, Fragomen reviews the changes to the guidance and interprets what this means for HR teams.

When does the new right to work guidance apply?

The new guidance applies to right to work checks carried out from 1 July 2021. It applies both to newly hired employees and to follow-up checks carried out for existing employees (in the limited circumstances where these are required). To establish a statutory excuse against a civil penalty for employing a migrant worker illegally, the employer must ensure that the right to work check is carried out in line with the applicable guidance on the date the check is made. Where illegal working is found, failure to have carried out a compliant check can result in a civil penalty, loss of a sponsor licence (if held) and other sanctions.

Retrospective right to work checks

Right to work checks can be completed for new hires prior to the first day of employment. Retrospective right to work checks are not required where these were correctly conducted in line with the applicable guidance on the date the check was completed.

In other words, if you conducted a right to work check for a new employee on or before 30 June 2021, but their employment commenced on or after 1 July 2021, provided that the check is compliant with the previous version of the guidance, it will still provide you with a statutory excuse against a civil penalty.

How does the new guidance affect EEA nationals?

The grace period for checking the right to work of EEA nationals, which followed the end of the Brexit transition period, ended on 30 June 2021. The Government's right to work guidance has been updated to reflect the new position. These are the key points:

  • From 1 July 2021, EEA nationals can no longer rely on an EEA passport or national identity card to prove their right to work in the UK, and their qualifying family members can no longer rely on residence documents (such as an EEA family permit or an EEA residence card) or a biometric residence card issued under the EEA Regulations.
  • The list of acceptable documents for conducting a manual right to work check has been updated and is set out at Annex A of the guidance. Our quick reference tool sets out the documentation acceptable as proof of right to work in the UK for those with an indefinite right to work in the UK and those with a limited right to work in the UK (see also more below).
  • Annex B of the guidance addresses a variety of scenarios affecting EEA nationals' right to work in the UK and sets out the steps that employers must follow, including in relation to frontier workers and EEA nationals who have not made an application under the EU settlement scheme (see more below).

Are there any concessions under the EU settlement scheme?

The guidance provides a reminder that EEA nationals and their family members who arrived in the UK before the end of the transition period must have applied to the EU settlement scheme before the deadline of 30 June 2021. However, acknowledging that not everyone who is eligible to apply to the scheme will have made their application in time or received a decision before 1 July 2021, guidance is provided at Annex B:

  • If an employee made an application under the EU settlement scheme by 30 June 2021, but this has not yet been decided, they will retain the right of residence until a decision is made on the application and on any subsequent appeal. Where an EU settlement scheme application is pending, to conduct a compliant right to work check from 1 July 2021, the employer will need to ask the employee for the Certificate of Application or email or letter from the EU settlement scheme confirming that the employee has made the application and obtain a Positive Verification Notice through the Home Office employer checking service.
  • For those employed on or before 30 June 2021, if it later transpires that the employee has not made an application under the EU settlement scheme, you do not automatically need to terminate their employment. Instead, advise the employee to file an application with the EU settlement scheme within 28 days. You should then follow the same process to obtain the Certificate of Application and Positive Verification Notice. This concession remains in place until 31 December 2021.
  • Late applications to the EU settlement scheme will be permitted where the individual can demonstrate reasonable grounds for having failed to apply by 30 June 2021. Eligible individuals will be issued with a 28-day notice in which to make the application.
  • EEA nationals who have not applied to the EU settlement scheme and who wish to begin employment from 1 July 2021 onwards will not be able to do so unless they have alternative immigration status enabling them to work in the UK.
  • In August 2021, the Government announced that EEA nationals who make a late application to the EU settlement scheme after 30 June 2021 will be able to seek new employment in the UK on or after 1 July 2021. Employers will need to obtain the EEA national's Certificate of Application and a Positive Verification Notice to establish a statutory excuse.

What documents can EEA nationals use to prove their immigration status?

There is an updated list A and list B, which sets out the documents that employers can use to check that an individual has the right to work in the UK from 1 July 2021 (many employers will use the Home Office online right to work checking service instead - see more below). The changes reflect the shift of EEA nationals to "third country" nationals in the UK. The key changes are as follows:

  • EEA national passports and national identification cards will no longer be acceptable documents as evidence of a right to work in the UK, except for those of Irish nationals for whom there is a separate entry in list A.
  • Specific reference is made to evidence of status or a pending application under the EU settlement scheme.
  • The slightly different arrangements for the UK's Crown Dependencies - the Channel Islands and the Isle of Man - are reflected with new entries into both lists.
  • A new acceptable document is the frontier worker permit in list B.
  • All references to document types issued under the relevant EEA Regulations have been removed.

eVisas

Throughout the new guidance there are references to the Home Office's roll-out of its digital immigration status, referred to as an "eVisa". Instead of a physical document, such as a biometric residence permit, the Home Office is increasingly issuing eVisas to enable individuals to evidence their immigration status. At the moment, eVisas are used mostly where an individual has status or has applied for settled or pre-settled status under the EU settlement scheme, but increasingly they will be used for other immigration routes such as the new graduate visa.

In order to conduct a compliant right to work check for an individual with an eVisa, employers will need to use the Home Office online right to work service. The employee will need to provide the employer with a share code to enable them to do so. Employers do not need to refer to list A or list B when conducting a check using the online service.

The online service can be used for individuals who hold:

  • a biometric residence permit;
  • a biometric residence card;
  • pre-settled or settled status under the EU settlement scheme;
  • status issued under the points-based immigration system;
  • a graduate visa;
  • a British National Overseas (BNO) visa; or
  • a frontier worker permit.

COVID-19 concessions

The Government has put in place concessions allowing virtual right to work checks to take place on account of the coronavirus (COVID-19) pandemic. These concessions are in place from 30 March 2020 until 5 April 2022, and they have been formalised in the guidance at Annex D. Employers will have a defence against a civil penalty if they complete a right to work check in accordance with the temporary adjustments. The guidance confirms that retrospective checks do not need to be conducted where a compliant COVID-19 adjusted check was carried out.

From 6 April 2022, employers will be required to carry out right to work checks in accordance with the guidance, either by way of a manual check of original documents or by using the online right to work checking service where relevant, although the guidance states that the Government intends to introduce a long-term digital solution for those who are unable to use the online right to work checking service and that new guidance will be issued.

What employers should do now

Based on the new guidance, employers should consider taking the following action:

  • Update internal right to work processes and documents: Employers should review internal processes, procedures and documents, to ensure that these reflect the updated requirements from 1 July 2021. This should include the process for carrying out checks on eVisas via the online right to work checking service, which will become increasingly relevant in the coming months and years.
  • Provide relevant staff with refresher training on the updated requirements: All staff who conduct right to work checks should be familiar with the documents for checking the right to work of EEA nationals and the process for carrying out the checks, including use of the employer checking service.
  • Ensure compliant right to work checks have been carried out for all employees: Right to work checks for all existing employees need to have been conducted in line with the applicable guidance when the check was carried out to make sure that a statutory excuse is in place. If the checks carried out on existing staff were not compliant, a repeated compliant check can establish the statutory excuse.
  • Retain copies of all right to work checks carried out: The guidance requires employers to retain a copy of all right to work checks they conduct for the duration of the employee's employment and two years thereafter. Copies can be stored either electronically or in hard copy.