Updated Guidance on Right to Work Checks to Take Effect From 1 July 2021

As has been well publicised, 30 June 2021 is the deadline for applications by EU, EEA and Swiss citizens and their family members to apply for status under the EU Settlement Scheme (EUSS). Once the deadline for applications to the EUSS has passed, employers will no longer be able to accept passports and national identity cards held by EU, EEA and Swiss citizens as proof of their right to work in the UK. Instead, citizens of those countries (and their family members) will need to prove to employers that they have been granted status under the EUSS or another immigration category before they can commence work. The details of these changes have now been published in a new government Code of Practice on Preventing Illegal Working, due to come into force on 1 July 2021.

As a reminder, it is best practice for employers to conduct right to work checks on every individual employed. Employers may be liable for civil penalties of up to £20,000 for each employee who does not have the right to work in the UK and where correct checks were not undertaken.

Online Right to Work Checks Become Crucial

Most people granted status under the EUSS will not have any form of physical documentation proving their status but will instead need to access and prove their immigration status online. In addition, most EU, EEA and Swiss nationals granted immigration status under the points-based immigration system will also be issued digital status instead of physical documents. As a result, the new Code of Practice places far greater emphasis on conducting online checks. Indeed, the Code of Practice make a point of advising employers that they must not discriminate against employees and prospective employees who can only prove their right to work digitally.

To carry out an online right to work check, an employer needs the applicant’s date of birth and their "share code", which they will have obtained online. The employer then completes the check online by visiting GOV.uk.

Checks on physical documents still need to be completed for UK and Irish nationals (who can use their passport as proof of right to work) and for individuals in the UK who do not hold a digital immigration status.

What Physical Documents Should Employers Accept?

In terms of substantive changes to the list of physical documents employers can accept from employees to establish a statutory excuse, passports or ID cards of EU, EEA, or Swiss citizens can no longer be accepted as valid proof of right to work from 1 July 2021. Additionally, various other documents confirming status under the EU's free movement rules will no longer be acceptable.

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 Permit
• 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

What Steps Should Employers Take?

Employers are reminded that there is no requirement to undertake retrospective checks on EU, EEA, or Swiss citizens who entered their employment before 1 July 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with legislation and guidance.

However, with less than three weeks until these changes come into effect employers should carry out an urgent review of their recruitment practices and policies to ensure that they reflect the changes to the Code of Practice. Colleagues responsible for conducting checks will need to be updated on what documents will be acceptable from 1 July 2021.

For more advice on right to work checks or for details of our policy for employers on preventing illegal working, please contact Tom Brett Young in our Immigration team on 07393 148352, or complete the form below.