Since Brexit, the right to work in the UK have changed. Employers must ensure they are hiring employees from the European Union legally.
Having left the European Union, since 1st of January 2021, the freedom of movement in the UK ends for all EU citizens without registered residence. Employers must therefore ensure that current and potential employees from the countries affected by this change have the required legal right to work.
So below we provide information about what to do as an employer to ensure you are employing EU citizens legally, and what information can you provide to your employees to ensure that they are up to date with their right to work documentation.
Working in the UK POST Brexit: What your employees need to know
On 1st January 2021, the UK Government’s points-based immigration system came into force. Anyone wishing to enter the UK for work must now apply for permission before their arrival to the UK. Under the points-based immigration system – designed to attract people who can contribute to the UK’s economy – applicants must meet a specific set of requirements, for which they will score points. Those who gain the required points will be awarded visas.
EU/EEA and Swiss citizens who have been already living and working in the UK before the 31st of December 2020 are required to apply under the EU Settlement Scheme. There will be granted either settled or pre-settled status to retain their ability to live and work in the UK. The limit for this application is the 30th of June 2021.
The application process is free and can be made by downloading the EU Exit ID Document check app or online. From the 1st of July 2021, they must prove they have either settled or pre-settled status or that they have at least applied.
Exemptions
EU nationals with indefinite leave to remain do not have to apply to the EU settlement scheme as they already have the right to live and work in the UK. However, they may apply if they wish, as settled or pre-settled status provides them with the benefit of a longer period of time that they can leave the country and return to the UK.
Please note that Irish nationals are exempt from applying as they are protected under the Common Travel Area arrangement. Other exemptions and information about eligibility can be found on the UK government website.
Employing EU citizens after Brexit: Advice for employers
It is advisable to look at your staff’s right to work documentation and who it may affect.
What could be the risk to my business?
As an employer, you have a legal obligation to prevent illegal working in the UK. The cost of getting the right to work checks wrong could have very serious implications. If the owner of a business or the person with ultimate responsibility is found to unknowingly have employed an illegal worker, it could result in a civil offence with a £20k fine per illegal worker, plus criminal charges, and reputational damage. If you knowingly employ an illegal worker, you could be found to have committed a criminal offence.
How to check Right to Work
How to check right to work from the 1st of January until the 30th of June 2021:
- For any new starters, right to work checks must be done before an individual commences employment with you.
- So long as the individual was in the UK before the 31st of December 2020, you can continue to accept their EU/EEA/Swiss issued passport/ID card and indefinite leave to remain as proof of right to work. If they have already applied to the EU settlement scheme, they should provide an online share code that can be accessed by following instructions stated in their EU scheme status confirmation.
- EU/EEA and Swiss citizens who arrived in the UK after the 31st of December 2020 will be required to hold a visa. If you are intending to hire someone to come to the UK, you will need to be a licensed sponsor.
How to check Right to Work from the 1st of July 2021:
- From this date, you will not be able to employ an individual until you have completed the required right to work checks.
- Individuals who applied to the EU settlement scheme will be required to prove their right to work via an online share code. This can be accessed by following instructions stated in their EU scheme status confirmation. Those with indefinite leave to remain, are not affected.
- EU/EEA and Swiss citizens who arrived in the UK after the 31st of December 2020 will be required to hold a visa to live and work in the UK. If you are intending to hire someone to come to the UK, you will need to be a licensed sponsor.
For the time being, Right to Work Checks can be carried out in line with the Coronavirus (COVID 19): Right to Work Home Office provisions. Once the temporary coronavirus RTW checking procedures end, employers will be required to carry out checks in line with the regular Right to Work guidance. This is within 8 weeks of the temporary checking measures ending. You will have to undertake the retrospective checking, unless and until there are exceptions provided around this.
Ensure your HR teams Know the changes to the right to work employment law
- Train your recruitment teams and anyone with a recruitment responsibility on the right to work changes.
- Conduct an audit of your right to work documentation. Ensure that you are clear on who may need to apply for settled or pre-settled status.
- Keep Government guidance under review.
- Update any policies and procedures.
- Continuous maintenance of the right to work records, ensuring they are always up to date and proactively managed. The records need to be easily accessible should the Home Office visit.
- You can contact an HR expert to get advice on right to work changes and guidance on policies and procedures to be implemented in your business.
Keep your employees informed
You might want to consider how to communicate and promote to your staff the need to apply for settled status or pre-settled status. You can certainly signpost the requirements and raise awareness. Please see address to the government leaflet.
The advice on communication is that it must be balanced and non-discriminatory. With the amount of press coverage, some employees may already have applied and hold the appropriate settled status documentation
Can I ask an individual if they have settled or pre-settled status?
It is not advisable to ask the direct question, but if an individual freely provides you with this, then you should take a copy for your HR files.
We can help
We have a team of CIPD qualified experts who can help you through the Right to Work changes. Move your business forward with peace of mind, knowing that you are legally compliant with the current legislation.