Changes for employers conducting right to work checks: penalties and European workers

13 February 2024

The Home Office has updated its right to work checks employer’s guide, publishing changes to processes, penalties and right to work checks for EEA citizens and their family members. These changes take effect from 13 February 2024 and introduce both higher consequences for employers and a harsher regime for some employees.

Costly consequences for non-compliance

Employers see a steep tripling of penalties across the board, increasing from £15,000 to up to £45,000 per worker for a first breach, and increasing from £20,000 to up to £60,000 per worker for repeated breaches. This comes hand in hand with a growth in immigration enforcement staff who will be cracking down with more compliance visits on sponsor licence holders that employ migrant workers.

Carrying out right to work checks correctly affords employers a statutory excuse to prevent civil penalties. It is worth reiterating, as always, that knowingly employing individuals without permission to work or having a reasonable cause to belief that they do not possess permission is a criminal offence that not only carries the above civil penalties but also potential imprisonment and further heftier fines.

Therefore, it is more important than ever for employers to ensure that they conduct right to work checks and practices correctly to avoid these harsh penalties.

Please contact us if you have any concerns, questions or would like the latest advice or an audit of best practices to avoid falling foul of any penalties on 0207 033 9527 or at enquiries@vanessaganguin.com.

What are the changes for EEA citizens?

Following Brexit and the end of free movement on 31 December 2020, eligible European Economic Area (EEA) citizens and their family members were required to apply for the EU Settlement Scheme (EUSS) before 30 June 2021 to continue legally residing in the UK.

Currently, EEA citizens and their families must possess immigration status the same way as any other foreign national and cannot rely on their passports or national identity cards as proof of right to work.

For employers who have conducted a right to work check on EEA migrant workers who began working prior to 1 July 2021, there is no need for a retrospective check to take place. The statutory excuse against any liability for civil penalties established before this date will continue, provided the employer undertook a right to work check in line with the guidance at the time.

Previously, where an employer had conducted a retrospective check (e.g. through an internal audit or due diligence check in connection with a company takeover) and found an employee who should have applied to the EUSS but had not, a 28-day grace period was in place for employers to signpost their employees to make late EUSS applications, and then obtain a Certificate of Application (CoA) to prove their employee has applied to the EUSS – this protected the employer until  their employee’s EUSS status had been determined.

Now, the new guidance states that where an employer identifies that an existing employee no longer has the right to work, the employer will need to take “appropriate action.” The Home Office examples of such actions include contacting it for support via the provided UK Visas and Immigration (UKVI) helpline or even taking steps to terminate employment. This new approach appears to fall in line with the UK government’s new policy of limiting what they will accept as “reasonable grounds” for a late EUSS application, where controversially, the applicant’s unawareness that they had to apply for the EUSS by the deadline will no longer be accepted. As we have had to advise many clients caught out by the deadline, the grounds for a successful late EUSS application have been greatly limited now.

If an individual is able to make a late application and UKVI accepts the grounds for the delay as “reasonable”, and so deems it to be a valid application, the person will be issued a CoA while their full application is under consideration.  They can then present an employer with a share code to check their right to work online.

However, they are not permitted to work until their application has been accepted as valid (pending full consideration) and they have been issued a CoA and there is no grace period.

What about family members of EEA-citizens?

Previous versions of the guidance explained that family members of EEA citizens who were resident in the UK before the end of the Brexit implementation period were able to apply for EUSS family permits that were valid for up to six months, to visit or join their family member in the UK. For those wishing to stay, family members were required to apply for the EUSS usually within three months of arriving in the UK.

The newest update removes much of this information, instead providing another reminder that non-EEA family members should have made an application to the EUSS before 30 June 2021 if they wished to continue residing in the UK, although it retains a reference to EUSS family permits for family members of persons of Northern Ireland who were resident in the UK by 31 December 2020.

Despite these changes to the guidance on checking right to work, there don’t appear to have been any corresponding changes to the rules restricting the ability of family members of EEA nationals from outside Northern Ireland, so it appears that the new guidance is simply incomplete. As such, there doesn’t appear to be any practical effect to these changes. If an employer is presented with a valid passport containing an EUSS family permit, this can count as a document showing the individual’s right to work in the UK for the duration of the permit and an employer can conduct a manual check on this document. If that person goes on to apply under the EUSS and they are issued with a digital CoA or Pre-Settled Status, they can provide an employer with a share code to verify their right to work using the online service.

To find out about the new penalties and changes to right to work checks for EEA citizens and their family members, click here.

For more on what employers can do to protect themselves, we have more information here, or please do not hesitate to contact us to discuss any such issues on 0207 033 9527 or at enquiries@vanessaganguin.com.