Member Article

Deadlines loom, as changes to rules on the rights of EEA and Swiss citizens to live and work in the UK are fast approaching. With many developments to keep apace of, we have highlighted the key dates and points which employers need to mark in the diary.

1. Grace period for right to work checks on EEA and Swiss workers ends on 30 June 2021

The end of EU free movement rules also marked the beginning of the grace period allowing EEA and Swiss citizens to continue to prove their right to work in the UK by using a passport or national identity card. This grace period ends on 30 June 2021. From 1 July 2021, employers will no longer be able to accept these methods for right to work checks. With the end of the grace period, employers also wave goodbye to the associated statutory excuse against civil liability in the event that they are found to have employed someone who does not have the right to do the work in question. To benefit from the statutory excuse employers must change their approach and follow the prescribed checks applicable from 1 July 2021 (addressed below). Employers should note that the allowances under the grace period have no impact on the criminal penalty where an employer knows or has reasonable cause to believe that they are employing an illegal worker.

2. New checks for EEA and Swiss workers begin on 1 July 2021

From 1 July 2021, the right to work for EEA and Swiss nationals will change. The right to work in the UK will be determined on the basis of immigration status rather than nationality, which will be processed using the Home Office’s online service. On 10 June 2021, the Home Office published a draft Code of Practice reflecting the changes on right to work checks for EEA and Swiss citizens. An update to the existing Employer’s Guide followed on 18 June 2021. Key changes to the list of acceptable documents include:

• passports and national identity cards of EEA and Swiss nationals have been removed from List A;
• Frontier Worker permits have been added to List B Group 1; and
• the addition, in List B Group 2, of a document issued by the Home office showing that the holder has a pending application under the EU Settlement Scheme (EUSS) (made on or before 30 June 2021), provided together with a Positive Verification Notice from the Home Office Employer Checking Service (ECS).
  
  

The Home Office has confirmed that there is no mandatory requirement for retrospective checks. Employers will be able to benefit from a continuous statutory excuse provided that the prior checks were conducted in accordance with the rules applicable during the grace period.

3. Applications to the EUSS should be made by 30 June 2021

The countdown to the deadline for applications to the EUSS, on 30 June 2021, also continues. Employers should continue to encourage affected workers to make applications for themselves and eligible family members. UK Visas and Immigration has stated that, while the expected processing time for an application to the EUSS is around five working days, it can take up to one month.

The updated Employer’s Guide has acknowledged the potential for an employer to discover that an employee is not able to show that they have the right to work in the UK through, for example, retrospective checks, internal audits or via whistleblowing. The guidance refers specifically to employees who have failed to apply under the EUSS in time (seemingly the Home Office’s response to campaigns to avoid another “Windrush Scandal”). Helpfully, the Employer’s Guide has been updated with the following process for employers to carry out as a “transitional measure” in these circumstances (where the employee has been employed prior to 30 June 2021):

• Advise the individual to make an application to the EUSS within 28 days and provide their Certificate of Application (CoA). If the individual fails to make an application their employment must be terminated.
• Once the CoA is obtained, confirm the application with the Home Office.
• Retain the Positive Verification Notice (PVN) issued by the ECS. The PVN along with the CoA provides a statutory excuse against civil penalty for six months.
• Conduct a follow-up check with the ECS prior to expiration of the PVN to maintain a statutory excuse. An individual can prove their right to work status using the online Home Office service.
• Where an application is pending, a further PVN will be issued for six months. Follow-up checks should be completed until an application has been finally determined.
• If a follow-up check shows an application has been refused, the individual’s employment must be terminated.
• Record and maintain accurate records of all steps taken in the process akin to the evidence retained to demonstrate a statutory excuse.
  
  

This clarification will be of some comfort to employers who may have been concerned about the handling of employees with indeterminate right to work status on expiry of the grace period. Nonetheless, employers should use the limited time remaining ahead of the deadline to encourage  their affected workforce to make in-time applications, as the best mitigation against business disruption.

4. COVID-19 concession on right to work checks extended to 31 August 2021

The COVID-19 concession on right to work checks allows employers to carry out checks using scanned copies or photographs of original documents, video calls or the online Employer Checking Service. This concession was due to end on 20 June 2021 to align with the easing of lockdown restrictions and social distancing measures anticipated to occur on 21 June 2021. The Home Office has now confirmed that adjusted right to work checks have been extended to 31 August 2021, following the deferment of step 4 on England’s roadmap out of lockdown to 19 July 2021. This provides employers with relief from the practical challenge of reverting to face-to-face and physical document checks, which are not required to resume until 1 September 2021. The updated Employer’s Guide confirms that retrospective checks on those conducted between 30 March 2020 and 31 August 2021 are not required, with employers maintaining a statutory excuse provided that checks were conducted in the prescribed manner.