We have briefly summarised the key points discussed and further sources of guidance below. The information contained in it is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

Brexit: Right to Work Changes

All employers who employ staff from the EU must act now on the new Immigration Rules that come into force on 31 December 2020. In the lead up to these changes, our Employment webinar sessions have highlighted the key areas of focus and provided practical tips and guidance on ensuring your organisation is aware of and ready to comply with the new legislative requirements.

Our last session, ‘Brexit- Right to Work Changes’, covered key right to work checks as well as new updates from the home office. We also covered a number of common themes that we have gathered from the various questions posed throughout our Immigration webinar series. A full recording of the webinar can be found below.

Our experts, Emma Morgan and Rachel Harvey were on hand to run through the key areas for consideration.

Right to Work Checks

There is a checking system which employers need to adopt in checking documents of a potential employees right to work. These documents must be the original documents shown by List A for acceptable documents to establish a continuous statutory excuse, and List B which establishes a statutory excuse for a time limited period.

Resource: The link for government guidance, with the acceptable documents for each list being detailed on page 31 can be found here.

Some examples are of documents that fall in List A and List B for time limited visas can be current passport and biometric residence permits (BRP cards). These right to work checks benefit from a COVID-19 concession meaning they can be done via video calls, as long as you see the original documentation in person, once the COVID-19 restrictions are lifted.

The UKVI do not expect Employers to be experts in assessing on the genuineness of documentation. There are checks in place to avoid this from becoming an issue, such as the online right to work check service, making sure the details in documents match up with the individual and looking to see if there is any evidence of tampering of with documents. These checks are very important as non-compliance could lead to a civil penalty or a revocation of sponsor certificates.

We recommend that you keep a copy of every document that was checked for the duration of the employee’s employment plus a further 2 years after they stop working for you.

This differs to workers who you sponsor via the skilled worker route, whose records you would need until they are checked by an immigration officer. These are basic audit trail records that would need to be made and saved for future use, such as the date the right to work checks were made, signing and dating every page of the documents you have seen and made a copy of to verify the original has been seen on x date by x person within the company.

These right to work checks would need to be carried out for all staff even if they have already been done, as this will ensure that your auditing of your work force is up to date and compliant with the new immigration rules and regulations. Further examples of right to work checks that should be made can be found in the in the recording of the webinar provided below.

Online right to work checking service

The online right to work checking service is a useful tool to see what an employee’s immigration status is, they can sign up to this service and then send you a share code to prove their right to work. This share code will be provided to you directly or via email, then you would need to enter the home office system from the employer’s side and you match up that persons details with the evidence you have, to make sure you are dealing with the correct person.

Post June 2021 this will be the only way to check immigration status for any new EU employees who join you and who have been resident in the UK prior to 31 December 2020, so it is a good idea to get up to speed with the service now rather than later.

Areas for awareness

As post December 2020 is the end of free movement there will be a restriction on EU nationals coming to the UK for work, and they would only be allowed to do so under a sponsored skilled worker licence. However, the EU national doesn’t need to apply for settled status until 30 June 2021, provided that they entered the UK before the end of free movement in December 2020. The catch is that we cannot ask for the evidence of the settled status prior to employment when the end of free movement arrives.

So, the question is how, as an employer, can we know when an EU national arrived in the UK? The government have not updated any guidance to reflect this as yet.

What we do know is that EU passports and EU identity cards can still be used for right to work checks until June 2021, and you can’t require someone to have settled/pre settled status before June 2021.

The problem is that as an employer you face the risk of potential penalties for employing someone who is an illegal worker, so it would be best practice to ask the EU national when they came to the UK, but this is not always practical.

This is something that the Home Office needs to clarify further as this is a grey area of what the employer needs to do so that they know they have recruited an EU national legally.

Follow on action:

This was the final webinar in our Immigration Webinar Series, further details of our Immigration webinars can be found on our Brexit Insights hub page on:

Resource: https://www.shoosmiths.co.uk/insights/webinars/brexit-series

We highly recommend you act on the information we have provide as soon as possible in relation to right to work checks and previous webinars.

These webinars are intended as a general update across the main areas of change and compliance. There may be some organisation who will require further guidance. For any specific advice, please contact our Immigration team who will be pleased to deal with any further queries.