Can an employer rely on an EEA passport as evidence of the right to work if the individual arrived in the UK after 31 December 2020?

Until 1 July 2021, European Economic Area (EEA) and Swiss national job applicants can continue to prove their right to work with their passport or national identity card. However, there is a risk for an employer in relying on this, where it knows or has reasonable cause to believe that the individual arrived in the UK after 31 December 2020.

EEA and Swiss nationals who were in the UK on or before 31 December 2020 (the end of the Brexit transition period) have the right to work in the UK, provided that they apply for settled or pre-settled status. Those arriving in the UK after that date must qualify for the right to work under the new immigration system, for example under the skilled worker route.

There is a grace period until 1 July 2021 for applications for settled or pre-settled status. Government guidance is that, during the grace period, employers are not expected to differentiate between individuals who arrived before the end of transition period on 31 December 2020 and those arriving after that date.

Carrying out a compliant right to work check provides the employer with a defence, or "statutory excuse", against liability for employing a worker illegally. However, an employer will not have a statutory excuse if it knows, or has reasonable cause to believe, that an EEA or Swiss national arrived in the UK after 31 December 2020, and does not have the right to work in the UK.

While the guidance states clearly that employers are not expected to differentiate between individuals based on when they arrived in the UK, it does not address how an employer can protect itself from liability for employing a worker illegally when it has reason to believe they arrived after 31 December 2020. Employers in this situation should consider taking legal advice.

Employers could make sure that candidates are aware of the potential future implications if they rely on their EEA passport when they do not in fact have settled or pre-settled status, or another permission under the new immigration system. For example, they may be unable to prove their right to work when applying for future employment and may face difficulty accessing public services or renting accommodation.