As an employer, you will be familiar with the government requirement for you to ensure that prospective employees have the legal right to work in the UK. However, Brexit has ended the freedom of movement previously afforded to EU nationals. As the transition period draws to a close at the end of June, it is vital that you familiarise yourself with how the new points-based immigration system will impact how you go about employing overseas workers.
All employers have a duty to ensure that individuals they employ have the legal right to work in the UK, so must conduct robust checks prior to taking on a new hire. In cases where an employee is subject to a work visa with a specific expiry date, this obligation extends to conducting a further check shortly prior to the date that the visa is due to expire.
Should an employer knowingly hire an individual who does not have the legal right to work in the UK, or whom it reasonably believes does not have such a right, that employer commits a criminal offence, to which there is no defence and which carries a maximum penalty of 5 years imprisonment and an unlimited fine.
Similarly, unwittingly employing an individual who does not have the legal right to work in the UK amounts to a civil offence. This could result in a fine of up to £20,000 per illegal employee.
Both the civil and criminal offences could adversely affect your organisational reputation and your ability to employ overseas nationals in the future. They could ultimately end in the loss of your business.
Having conducted a pre-employment Right to Work check in accordance with government guidelines is a statutory excuse and thus provides a defence against the civil offence. Knowing this, surely the better question would be why would you not conduct Right to Work checks?
Government guidelines specify that employers must obtain and thoroughly check a prospective hire’s original identity documents to ensure that he or she is legally entitled to work in the UK. Copies of relevant documentation must then be kept securely.
In some limited circumstances, documents may be checked remotely via electronic systems to facilitate the continuance of Right to Work checks throughout periods of national lockdown. However, these changes are only temporary and are due to come to an end on 21st June 2021.
Since 1st January 2021 the majority of nationals newly arriving in the UK from the European Economic Area or Switzerland have required a Skilled Worker Visa in order to be legally entitled to work here. However, the terms of the EU Settlement Scheme mean that EEA and Swiss nationals who entered the UK prior to 23.00hrs on 31st December 2020 have until 30th June 2021 to apply for settled or pre-settled status which, if approved, affords them the legal right to work in the UK.
This right is extended to those still awaiting the outcome of their application on 30th June 2021, including any subsequent appeals. If an EEA or Swiss national fails to apply by this date or has their application and subsequent appeal refused, he or she will have to seek an alternate route to legal employment. In order to avoid allegations of discrimination based upon nationality, employers are currently prohibited from demanding evidence that a prospective employee from the EEA or Switzerland has been granted permission to work under the EUSS.
In light of this, until 30th June 2021 employers can continue to rely on a passport or national identity card from an EEA or Swiss national as evidence that he or she has the right to work in the UK. Of course, this means that employers may unwittingly employ illegal workers, but they would be able to rely upon the statutory excuse in defence against the civil offence. As we have seen, no such defence exists where the employer knows or reasonably believes, that the individual does not have the lawful right to work in the UK.
Whilst the procedure for conducting Right to Work checks on individuals from outside the EEA and Switzerland remains unchanged, the new points-based immigration system introduced following Brexit ends freedom of movement for EEA and Swiss nationals (with the exception of citizens of the Republic of Ireland).
Consequently, from 1st July the vast majority of EEA and Swiss nationals will have to demonstrate their right to work through evidence of their immigration status, rather than their nationality. This information is recorded electronically and can be accessed online with a share code. In some limited circumstances, you may be required to contact the Home Office’s Employer Checking Service to verify a prospective employee’s right to work. Read more about that here.
As before, employers are obliged to retain copies of documents provided by employees evidencing their right to work in the UK. If the check has been conducted online, employers must make a record of this (such as a print or screenshot). In either case, a record must be kept of the date on which the check was undertaken. These records must be stored securely and retained throughout the period of employment and for two years thereafter.
There is no requirement to conduct retrospective checks on individuals hired on or before June 30th.
At Secure Screening Services, we aim to take the complexity out of Right to Work screening to ensure that, not only are you employing people who are entitled to work in the UK but also that you can evidence you have met your regulatory obligations in this regard whenever required.
Our highly experienced team personally checks identity documents and other evidence of an individual’s immigration status and right to work; copies of which are stored securely within our user-friendly and GDPR-compliant online screening portal and can be downloaded anytime, anywhere.
We are experts in our field and keep abreast of the ever-changing legislation, so you can rest assured that our comprehensive Right to Work checking procedures are always up-to-date and our knowledgeable team is on hand to answer any questions you may have.