Government reforms (3):  Immigration – Right to work checks

right to work

What do we already know?

As part of an employer’s obligations to prevent illegal working, there is a requirement to check the right to work of all employees’ original documents in person on or before their first day of work.

As a result of Brexit, the right to work check process is changing and EU citizens who want to continue to live and work in the UK beyond 30 June 2021 require immigration status in the UK, in the same way as other foreign nationals.  They will no longer be able to rely on an EEA passport or national identity card, to prove their right to work.

What’s new?

To implement the changes to the right to work check process, the Government has published an updated draft code of practice on preventing illegal working (the code of practice) available here, which took effect from 1 July 2021.  Although it has been published in draft form it is not expected to change.

The Government has also upated its more detailed employer guidance on right to work checks, available here.

The main changes in the updated code of practice and employer guidance relate to the right to work checks required against EEA/Swiss nationals and any third country family members from 1 July 2021.  In particular:

  • EEA citizens in the UK will usually prove their right to work by sharing their immigration status digitally, using the usual Home Office online right to work service on  Employers will needs the applicant’s date of birth and their “share code” to carry out this online check;
  • EEA citizens may also have another form of leave to remain in the UK, which is held in a physical document, for example an endorsement in a passport, visa or vignette.
  • The ‘list A’ and ‘list B’ structure of acceptable documents remains the same, although the lists themselves have been amended. It remains the case that list A documents will secure an ongoing statutory excuse provided they are checked and recovered correctly. List B documents evidence a temporary right to work, and so employers must diarise to complete the required repeat check.
  • The main changes to the list (taken from the draft code) are:
    • passports or ID cards of EU, EEA, or Swiss citizens and various other documents confirming status under the EU’s free movement rules are removed as they can no longer be accepted as valid proof of right to work from 1 July 2021.
    • The following documents are new to the list though and can be accepted by employers from 1 July:
      • Irish passport or passport card
      • Frontier Worker Permits (which will evidence a temporary right to work in the UK)
      • Documents issued by the Crown Dependencies EU Settlement Schemes, when verified by the relevant Home Office checking service
      • Certificate of Application or document issued by the UK, Jersey or Guernsey EU Settlement Schemes, confirming an application made by the 30 June deadline, when verified by the relevant Home Office checking service.
  • The Home Office Employer Checking Service (ECS) will continue to operate in the usual way in respect of follow-up checks for those with time-limited permission to work in the UK and will provide a positive or negative verification notice as usual.
  • However, the code of practice states that if the ECS does not consider a request within five working days – which is often the case – the employer will get an automated response confirming they may hire the individual. This automated response will provide a statutory excuse to illegal working. If a negative verification notice is subsequently received, the employer must carefully investigate before terminating employment.
  • The Government has emphasised in the draft code that it only applies to checks from 1 July 2021 and that employers do not need to retrospectively check the status of any EU, EEA, or Swiss citizens they employed before this date.
  • Transitional measures will be in place until 31 December 2021. This allows that if an existing employee did not apply to the EU Settlement Scheme by 30 June 2021, the employer will not have to terminate employment. Instead it should:
    • advise the employee to apply to the EU Settlement Scheme within 28 days and provide a copy of their Certificate of Application;
    • once a copy of the Certificate of Application has been provided, use the Employer Checking Service to confirm they have applied. The employer may be required to provide evidence of the individual’s start date, including a copy of the initial right to work check;
    • if a Positive Verification Notice is received, a statutory excuse will be secured for six months, allowing for the application to be processed;
    • a repeat check must be conducted before the Positive Verification Notice expires.
right to work