Do I need to change my right to work process for European nationals post-Brexit?

This immigration article looks at:

• The current right to work requirements for the employment of European nationals;
• The impact of no change to right to work requirements between 31 December 2020 and 30 June 2021 - What does this mean for the employer of a European national?;
• The requirement for pre-Brexit European nationals resident in the UK to secure status on the EU Settlement Scheme;
• The new immigration system and its application to post-Brexit European national arrivals in the UK; and
• The challenges for employers in navigating the new systems.

EU/EEA nationals and their family members will no longer have rights derived from European law when free movement ends. As such, EU/EEA nationals and their family members must secure status under the Immigration Rules. The EU Settlement Scheme (“EU SS”) provides the mechanism for doing this. They have until 30 June 2021 to secure status on the EU SS. The period from the end of the transition period (31 December 2020) to the end of the voluntary period for registering on the scheme (30 June 2021) is known as the grace period.There will be no change to right to work checks for EEA nationals and their family members before the end of the grace period. Until 30 June 2021, employers will be able to check a job applicant's right to work in the same way as now. This means that a European passport or ID card will be sufficient to evidence a person's right to work.Importantly, for the employers of EU/EEA national employees, who commence employment on or before 30 June 2021, the Home Office's intention is not to apply changes to right to work guidance retrospectively. Employers will not be required to carry out retrospective checks on their existing employees. The Home Office has taken a policy decision that employers will not be required to carry out follow up checks, despite the fact that many European nationals will have pre-settled status which is time limit. The intended outcome being that no new right to work checks will be required on existing EU/EEA national employees as a result of the end of transition, the deadline for the EU Settlement Scheme being reached, the new immigration system being launched and/or right to work guidance being changed.As the Home Office does not intend to amend right to work guidance before end June 2021 it has stated that it does not intend to undertake enforcement action against the employers of EU/EEA nationals during this period. In its policy statement of 19 January 2020, the government stated that:'employers, landlords and public service providers will continue to accept the passports and national identity cards of EU citizens as evidence of permission during this period, up until 30 June 2021'Although employers are not required to seek evidence of an employee's registration on the EU SS, you may ask existing and new employees to provide proof of registration on the EU Settlement Scheme on a voluntary basis. This cannot be mandated and must be requested in a non-discriminatory manner. A non-discriminatory manner would include not making assumptions about an employee's nationality or right to work based on for example appearance, accent or surname. It would be best practice to direct any communication at the whole workforce, not least because you may miss employees who need to apply but are not aware of this requirement if you narrow the target for communications too tightly. Until right to work guidance changes you should not impose any sanction, direct or implied, for failure to provide evidence of registration of the EU SS.Where an employee wishes to provide evidence of their registration on the EU SS, an online right to work check can be used, with the prospective employee's permission, to secure evidence of pre-settled status or settled status. An EEA national has the option to provide a share code to their employer to prove their status under the Settlement Scheme.Irish citizens will continue to be able to prove their right to work in the UK as they do now and will be treated as having no time limit on their stay. They also have the option to secure status under the EU Settlement Scheme or other relevant provision of the Immigration Rules if this is beneficial to them. There will be no requirement for them to do this.Right to work guidance will be changed in readiness for the 30 June 2021 deadline, to incorporate the mandatory requirement for EU/EEA nationals and their family members to hold immigration status, whether that is limited leave to remain or indefinite leave to remain secured under the EU SS sections of the Immigration Rules or a visa issued to a new arrival under the relevant Immigration Rule.Right to work checks will be required for new employees, prior to commencement of employment, regardless of when those employees arrived in the UK. Compliance with existing guidance will be sufficient. This creates an unusual situation; a European national arriving for the first time after 31 December 2020 would require a visa issued under the Immigration Rules to work lawfully in the UK but the employer of that European national would not be required to have sight of that visa to complete a compliant right to work check. A check, and retention of a copy, of a European passport, for example, would be sufficient.If an employer has knowledge of an absence of status, either because a person was entitled to apply or extend their leave to remain on the EU Settlement Scheme but didn't and the voluntary period for doing so has ended, or because they arrived after 31 December 2020 and didn't secure the require entry clearance or leave to remain, and the employer continues to employ them, they could be prosecuted under the criminal offence of knowing or having reasonable cause to believe that an employee is working without a right to work, despite not being liable for a right to work civil penalty. In this scenario the employee could be prosecuted for illegal working.This will be a difficult period for employers. They will need to ensure they are up to date with the latest right to work guidance and understand the challenges created by the end of transition, the grace period and beyond. Further guidance may be published as we reach the start of the grace period.Right to work compliance will become more and more relevant and the risk of inadvertent non-compliance will increase as European nationals arriving in the UK beyond transition will cease to benefit from an automatic and underlying right to work but will need visa status to be avoid working illegally.

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