How should employers carry out right to work in the UK checks for European nationals following Brexit?

Employers must continue to carry out right to work checks for all workers before employing them, as was the case prior to Brexit.

Employers can continue to use European Economic Area (EEA) and Swiss passports and national identity cards as evidence of an individual's right to work in the UK until 30 June 2021.

Employers can also use the online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service. They can provide their passport or national identity card as an alternative. Government guidance suggests that, up to 30 June 2021, an employer that insists on seeing evidence of settled or pre-settled status risks a complaint of race discrimination.

A transition period is currently in place, following the UK's departure from the EU on 31 January 2020. The transition period will end on 31 December 2020. EEA and Swiss nationals who are in the UK before the end of the transition period have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK.

There will be no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it will not need to repeat this when the transition period ends.

EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ends on 31 December 2020, they will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.

EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether or not they require a visa. The Home Office has yet to provide guidance in relation to checking the right to work of employees in this category.