The detail regarding the right to work checks that employers will need to perform on EU workers from 1 July 2021 has finally emerged.
The Home Office has published ‘Employer right to work checks supporting guidance’ (here) and a draft ‘Code of practice on preventing illegal working’ (here). Employers need to follow these documents from 1 July 2021. This is if they wish to have a statutory excuse against a civil penalty in the event that it later emerges that the employee did not have the right to work. We expect the final version of the draft Code to be published soon.
Immigration status of EU citizens
The documents confirm that, in relation to EEA/Swiss nationals (we will refer to them as ‘EU Citizens’), from 1 July 2021 employers will need to check their status under the EU Settlement Scheme (‘EUSS’) or Immigration Rules (Skilled Worker, for example), or obtain evidence of a pending application along with a Positive Verification Notice obtained from the Employer Checking Service.
If a right to work check was performed before 1 July 2021, the current simplified position (i.e. a passport or national ID card) applies. This is the case even if the worker is due to commence their employment on or after 1 July 2021.
On 30 June 2021 an employer performs a right to work check on an EU citizen who will be starting work on 14 July. In this case, they only need to check the person’s EU passport in order to establish a statutory excuse. If the check is performed on 2 July, once the new Code comes into force, they will also need to see evidence of the individual’s status under the EUSS or the Immigration Rules, or that they have an application pending.
However, if a breach occurs after 1 July 2021, the draft Code will apply when calculating the penalty, even though the check was performed in June. Any follow up checks required to maintain a statutory excuse that are performed from 1 July 2021 must meet the requirements set out in the draft Code (once it is finalised).
List A and B
Lists A and B, which specify the documents that are acceptable for the purposes of establishing a statutory excuse, are significantly amended. Changes include:
- EU citizens employed from 1 July 2021 will no longer be able to produce only a national passport or ID document, other than Irish nationals;
- in relation to EU citizens who have made an application under EUSS, specific evidence of status or a pending application must be produced;
- Frontier Worker Permits appear in List B; and
- all references to document types issued under the EEA Regulations have been removed.
List A confirms that passports of British and Irish citizens can be current or expired. Passports for all other nationalities must be current.
List B concerns employees who have time limited permission. A number of additional documents have been added for EU citizens.
Digital immigration status
The documents reflect the fact that the Home Office is issuing digital immigration status instead of a physical document to many individuals, mainly under the EUSS at this stage.
They confirm that digital evidence of status is to be granted more often as the Home Office continues to embrace technological developments in this area.
Employers should incorporate the need for digital checks in certain cases into their existing procedures.
Employer Checking Service
In cases where the individual cannot provide a specific document, for example, because they have an application to extend their stay pending with the Home Office, the employer can still obtain a statutory excuse. This is providing they apply for and are issued with a Positive Verification Notice (PVN) from the Employer Checking Service.
Employers will have a statutory excuse for up to 28 days from the expiry date of original immigration permission to enable them to obtain a PVN. It should be noted however that the 28 day period only applies to existing employees, not to new starters. In such cases, in order to be able to rely on a statutory excuse, employers should delay the employment start date until a PVN is obtained.
If the Employer Checking Service hasn’t processed a request in relation to a new starter within five working days an automated notice will be sent to the employer confirming that the new starter can start work. Caution should however be exercised because if a Negative Verification Notice is subsequently received, the employment may need to be terminated, subject to employment law advice.
Employers should retain copies of communication with the Employer Checking Service on file to demonstrate that they have obtained/retained a statutory excuse if needed.
The Home Office has already confirmed that employers who recruited EU citizens before 1 July 2021 do not need to conduct retrospective checks on their immigration status. Providing they performed a valid right to work check on the passport or national identity document that was initially provided, they will have a statutory excuse.
If a right to work check wasn’t performed, or did not meet the full requirements, employers should take action to ensure that the worker does indeed have the right to work. We would recommend that they seek employment law advice if they do not.
You can find more on this, and other questions and answers in the Home Office’s latest Factsheet.
The guidance also confirms the Home Office’s concession to allow checks to be undertaken virtually during the pandemic. You can read more about this here.
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