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Markel Insurances

12 Jul 2021

Right to Work checks since 1 July 2021: what employers need to know

Employers must check that job applicants have the legal right to work in the UK before they start their employment.  Since 1 July 2021, in respect of any new recruitment from that date (this does not apply to existing EEA and Swiss employees employed before that date), employers have been required to check that all EEA nationals and Swiss nationals, have a valid UK immigration status under the new immigration regime: for those individuals a valid passport or national identity card is no longer sufficient evidence to provide employers with a statutory excuse from a civil penalty if it later transpires an employee does not have the legal right to work in the UK.

To carry out a right to work check, employers may either:

For new recruitment, Markel users may use the template ‘letter to new recruit requesting evidence of right to work’ on the Markel Law Hub.  Markel users may also refer to the ‘Right to Work Checklist’ and to the fact sheet on ‘Preventing Illegal Working’ for further guidance on right to work checks for new recruits and what employers should do where they know or have reason to believe that an existing employee who is a Swiss or EEA national has not applied to the EU Settlement Scheme (EUSS) on time.  The EEA includes the EU countries and also Iceland, Liechtenstein and Norway.

Outstanding UK EU Settlement Scheme applications which were submitted up to and including 30 June 2021

EEA citizens, Swiss nationals and their family members, who have made an application to the EUSS up to and including 30 June 2021 and have not yet been granted status, can continue to live in the UK as now and maintain a right to work until their application is finally determined. This includes pending the outcome of any appeal against a decision to refuse status.

Home Office statistics show that, as at 2 July 2021, there were 569,100 applications which were made in time waiting for a decision (i.e. outstanding applications).

From 1 July 2021, EEA citizens with an outstanding application to the EUSS made up to and including 30 June 2021 will be issued with either:

  • A Certificate of Application to the Scheme (CoA), or;
  • An email confirming receipt of their settlement application

 Where this applies, employers must request a right to work check from the Employer Checking Service (ECS), using the online form ‘request a Home Office right to work check’ on GOV.UK at:
https://www.gov.uk/employee-immigration-employment-status

The employer must make a copy of their Scheme CoA or their settlement application email receipt and retain this with the response from the ECS to have a statutory excuse against liability for a civil penalty.

Employers should be mindful of the risks of indirect race discrimination claims if they reject recruits who are EEA and Swiss nationals with outstanding applications to the Scheme where the application was made prior to the EUSS application deadline. 

EEA Citizens without lawful immigration status after 30 June 2021: Transitional Measures

Employers will have a continuous statutory excuse against a civil penalty if they carried out an initial right to work check correctly, such as where an EEA citizen provided their passport or national identity card to prove their right to work prior to 1 July 2021. There is no requirement to carry out retrospective checks for staff employed prior to 1 July 2021. 

If an EEA citizen applies for a job after 30 June 2021, but has not applied to the EUSS by the 30 June 2021 deadline and has no alternative immigration status in the UK, then they will not be able to pass a right to work check and should not be employed. If they believe they are eligible for the EUSS, the prospective employer should signpost the individual to the EUSS from them to make an application.

For employees who were employed prior to 1 July 2021, although there is no obligation to make retrospective right to work checks, it may come to the employer’s attention that an EEA citizen who is an employee has not applied to the EUSS by the deadline and does not hold any other form of leave in the UK. This could happen where the employer has chosen to carry out a retrospective check, completed an internal audit or has been made aware that their employee does not have a lawful status in the UK in some other way e.g. they know the employee first started living in the UK after December 2020.  Where the EEA citizen was employed by the employer in the UK, prior to the end of the grace period (30 June 2021), transitional measures apply until 31 December 2021.

Under these transitional measures, employers should:

  1. Advise the individual they must make an application to the EUSS within 28 days and the employee must provide the employer with a Certificate of Application (CoA). If they do not make an application to the EUSS within 28 days, the employer must take steps to cease their employment in line with right to work legislation (subject to following a fair dismissal process to avoid unfair dismissal claims. Employers should take legal advice prior to taking steps to dismiss an employee).

  2. Once the employer has been provided with a CoA, the employer must then contact the Home Office Employer Checking Service (ECS) https://www.gov.uk/employee-immigration-employment-status) to confirm the individual has applied. When contacting the ECS, the employer may be asked to provide evidence of the start date of the individual's employment (such as a copy of the initial right to work check).

  3. Where an application has been made, the ECS will give the employer a Positive Verification Notice (PVN). Retaining the PVN and a copy of the individual’s CoA will then provide the employer with a statutory excuse against a civil penalty for 6 months. This allows sufficient time for the application to be concluded and enables the individual to maintain their employment with the employer during that time.

  4. Before the PVN expires, the employer must do a follow-up check with the ECS in order to maintain their statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, they can prove their right to work to their employer using the Home Office right to work online service.

  5. If the follow-up check confirms that the application is pending, the employee will be given a further PVN for 6 months and would then repeat step 4 until such time as the application has been finally determined. If the follow-up check confirms the application has been finally determined and refused, then the employer will not be issued with a PVN and the employer must take steps to cease the individual's employment.  For existing employees, to avoid unfair dismissal claims, employers must follow a fair dismissal process when terminating the employment and take legal advice prior to taking steps to dismiss.  Markel users may also refer to the fact sheet on ‘Some other substantial reason dismissals’ on the Markel Law Hub for guidance on a fair dismissal process in this circumstance.

  6. Employers are advised to record and maintain accurate records of checks and actions taken in regard to the Home Office guidance in the same way in which evidence is retained to demonstrate a statutory excuse.

Similarly where Immigration Enforcement encounter EEA citizens, or their family members, who are working without immigration status, they will be given a written 28-day notice before action is taken.

Next article in series

12 Jul 2021

The removal of coronavirus legal restrictions in England: FAQs for Employers