Right to work checks: what must employers do?

The Home Office has released its long anticipated guidance on how right to work checks will be carried out from 1 July 2021. Online checks replace most EEA national passports as acceptable proof of right to work. This article considers some key questions for employers arising from the guidance. 

Why do employers carry out right to work checks?

The purpose of right to work checks is to establish a statutory excuse against illegal working. It is an offence to employ an individual who you know or have reasonable cause to believe is an illegal worker. Employers can receive civil penalties of up to £20,000 per worker, or indeed criminal sanctions in the most serious cases if they are found to be employing an illegal worker.

Conducting appropriate right to work checks against new recruits prior to commencing employment will provide employers with a statutory excuse against the civil penalty, either continuously or until such time as the individual's right to work expires. Follow up checks may be required in cases where an individual's right to work is subject to a time limit.

What changed from 1 July 2021?

The Brexit transition period ended on 1 January 2021. EEA nationals living in the UK before this date had until 30 June 2021 to apply to the EU Settlement Scheme (“EUSS”) to secure their right to continue living and working lawfully in the UK. Late applications can be made where the applicant can demonstrate reasonable grounds for doing so.

From 1 July 2021, EEA nationals (with the exception of Irish citizens) can no longer use their passport to satisfy right to work checks. This is because they now require status either through the EUSS or by another means to work in the UK. EUSS status is granted digitally, therefore such status can only be verified digitally using the online checks.

How do I conduct an online right to work check?

This process must start with the recruit, who will require to obtain a share code online and share this with their prospective employer along with their date of birth.

Once the employer has both details, they can view the person’s right to work online in their presence and, as with all right to work checks, retain a copy and record when the check was carried out.

Do all EEA nationals recruits need to complete online checks from 1 July 2021?

No, as not all EEA nationals will have status under the EUSS.

Irish nationals can continue to use their passports and do not require to use the online system. Similarly, EEA nationals with status as a frontier worker may have a physical permit instead of digital leave, which permit can be presented for a manual check. Frontier worker status can also be verified online. Some EEA nationals may also have indefinite leave to enter or remain, which can be evidenced by presentation of the document confirming this status. Holders of a biometric residence permit can present this for a manual check instead of the online system.

Non-EEA family members of EEA nationals may have an EUSS family permit affixed to their passport, or a biometric residence permit which can be used instead of the online checks. EEA family permits are no longer valid since 30 June 2021.

What if the job applicant has a pending application under the EUSS?

If your business recruits an EEA national who applied to the EUSS before 30 June 2021 but has not yet received a decision, you should discuss with the recruit what documentation they have to evidence their right to work.

If the individual can provide you with a share code, the online system can be used. However, certain applicants with pending applications may only have a paper certificate of application or an email from the Home Office confirming receipt of their application. In these cases, employers must take a copy of the certificate of application or email, and use the Employer Checking Service to confirm the individual's right to work.

Do I need to carry out retrospective checks on existing employees?

No. There is no requirement to carry out retrospective checks, but employers have the option of doing so in a non-discriminatory manner if they wish.

What if an existing employee has missed the deadline to apply for the EUSS?

If, through retrospective checks or any other means, an employer becomes aware that they have employed an EEA national before 30 June 2021 who has missed the deadline to apply to the EUSS, the guidance sets out transitional measures employers should take until 31 December 2021.

There is no need to terminate employment immediately. Instead, employers are advised to:

• advise the EEA national to make a late application to the EUSS within 28 days and provide a certificate of application;
• once the certificate of application has been obtained, contact the Employer Checking Service for a positive verification notice. This will confirm that the employee has applied and provides a statutory excuse for six months; and
• repeat the checks before the positive verification notice expires. This will involve either seeking confirmation that the individual has been granted status under the EUSS or obtaining a further positive verification notice if their application is still pending.

There remains a potential gap for employers, as there are limited means of actually knowing whether or not an existing employee has applied to the EUSS in time. Employees may volunteer this information, but unless retrospective checks are carried out, there is no way to force an employee to confirm this information or indeed compel them to apply. Where an employer is considering retrospective checks, specialist advice should be sought to ensure you are acting in a non-discriminatory manner and are equipped to deal with employees who refuse to comply.