Following the end of Free Movement, a grace period was introduced on 1 January 2021 which gave EU, EEA and Swiss nationals (“EEA nationals”), as well as their family members, extra time to secure immigration status under the EU Settlement Scheme. The grace period ended on 30 June 2021 and following this date, all EEA nationals and their family members now require immigration status to live and work in the UK, with the exception of Irish nationals.

Right to work checks for EEA nationals employed from 1 July 2021

From 1 July 2021, EEA passports and national ID cards alone will not be sufficient evidence of an EEA national’s right to work in the UK. As such, employers carrying out a right to work check will need to obtain additional evidence in order to establish a statutory excuse against illegal working.

Online checking service

In most cases, the additional evidence will be in the form of either confirmation by the employee of pre-settled or settled status. This is held digitally. As EEA nationals are likely unable to provide a physical document, employers will need to use the Home Office’s online checking service to determine whether an EEA national has the right to work in the UK. When using the checking service, an employer will need to use the employer portal of the service to establish the statutory excuse.

The Home Office guidance on carrying out right to work checks changes regularly so it is necessary for employers to check the latest guidance and any relevant legislation to ensure that they are following the correct procedure to establish the statutory excuse.

Alternative ways to check right to work

Where an EEA national cannot prove their status using the Home Office’s online checking service, employers must give staff every opportunity to demonstrate their right to work through other means. There may be many reasons why an EEA national cannot evidence their status using the online checking service and, in order to avoid potential discrimination, employers must be flexible in considering alternative evidence of right to work. In particular, EEA nationals who fall into any of the following categories will likely need to provide alternative evidence of right to work:

• Frontier workers;
• A service provider of Switzerland;
• EEA nationals with outstanding applications under the EU Settlement Scheme;
• EEA nationals with Indefinite Leave to Enter or Remain;
• Irish nationals; and
• EEA nationals with a visa under the Points Based system.

Right to work checks for EEA nationals employed before 1 July 2021

During the grace period of up to and including 30 June 2021, an employer cannot insist that an EEA citizen proved their immigration status using the Home Office online checking service. During this time, EEA citizens are able to continue proving their right to work by providing their EEA passport or national ID card.

There is no requirement to undertake retrospective checks on EEA citizens employed before the grace period ended. If retrospective checks are undertaken, an employer has a duty to carry these out in a non-discriminatory manner. If an employer subsequently becomes aware, or has reasonable cause to believe, that any individual has ceased to have a right to work lawfully in the UK, the statutory excuse will no longer apply.

A new transitional measure has been introduced which gives employers the flexibility to retain an EEA employee whilst they make an application. In these circumstances the employer should:

• Advise the employee that they must make an application to the EU Settlement Scheme within 28 days and provide the employer with a Certificate of Application (CoA).
• After receipt of the CoA, the employer should contact the Home Office Employer Checking Services (ECS) to confirm that an application has been made
• Where an application has been made, the ECS will give a Positive Verification Notice (PVN) and a statutory excuse will be established against a civil penalty for 6 months.
• If the PVN will expire before a decision has been made on the application, a follow-up check with the ECS must be made to maintain the statutory excuse.
• Where the follow-up check confirms that the application is pending, a PVN will be granted for a further 6 months.
• If the follow-up check confirms that the application has finally been determined and refused, the employer will not be issued with a PVN and steps should be taken to cease an individual’s employment.
• Maintain an accurate record of all checks and actions taken in relation to this measure in the same way that records are kept when conducting a standard right to work check.

Before taking advantage of this measure, employers must fully consider the Home Office guidance and ensure that the transitional period can be relied upon, the process has been followed and that the correct records of checks performed have been maintained.

This transitional period does not apply to EEA nationals employed after 30 June 2021. From 1 July 2021, an EEA national who has not made an application under the EU Settlement Scheme by the deadline and cannot provide evidence of alternative immigration status in the UK should not be employed. However, employers are urged to take legal advice before any action is taken.

Avoiding discrimination

As an employer you should not discriminate when conducting right to work checks. The Home Office has published statutory codes of practice for employers on how to avoid unlawful discrimination when undertaking checks. It clearly stipulates that employers should provide individuals with every opportunity to demonstrate their right to work and should not discriminate on the basis of race or any of the other protected characteristic.

Support available for Employers

Employers can email or call the Home Office for help and advice on prevention of illegal working on:

Telephone: 0300 790 6268 (Monday to Thursday, 9am to 4.45pm and Friday, 9am to 4.30pm).

Email: businesshelpdesk@homeoffice.gov.uk