Following the publication of the Home Office's draft Code of Practice on Preventing Illegal Working earlier this month, setting out the documents employers can accept when conducting Right to Work checks after 30 June 2021, the Home Office have now published further updates. These affect the position of EEA national employees after that date, and clarify the date on which employers are required to resume in-person checks.
As we have reported previously, the Government plans to end the concession to the Right to Work checking process which was introduced in response to the coronavirus pandemic and allows employers to conduct checks remotely instead of having to meet with employees or prospective employees face-to-face. The resumption of in-person checks was initially scheduled for 17 May 2021 and was then pushed back to 21 June to coincide with the date when Step 4 of the Government's COVID response was initially supposed to take effect.
Following the postponement of Step 4, the resumption of in-person checks has also been delayed, although not to 19 July, but instead to 1 September. Therefore, the last day on which an employer can conduct a remote Right to Work check on an employee or prospective employee will be 31 August 2021.
Following the publication of the Home Office's Code of Practice on Preventing Illegal Working, the Home Office have now published a more detailed guidance document for employers explaining the changes in more detail. Our blog post goes into further details of how these checks can be carried out.
The guidance reminds employers that there is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30 June 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with the guidance in force at the time the check was undertaken.
However, a very common question we are hearing from employers is what they should do if, after 30 June, they discover that an existing EEA national employee has failed to apply for status under the EU Settlement Scheme (EUSS) and therefore does not hold any immigration status. The guidance for employers now addresses this specific question setting out a process for employers to follow as a transitional measure until 31 December 2021 in the event in circumstances where the employer identifies that an EEA national employee did not apply to the EUSS by 30 June 2021.
The steps employers should take are as follows:
Employers are advised to maintain accurate records of checks and actions taken when following the above steps.
Note that this process only applies to EEA nationals employed before 1 July 2021. For EEA nationals employed on or after that date, employers are required to follow the required steps to obtain, check and retain the documents set out in the guidance and Code of Practice.