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By Vanessa Ganguin

Right to work checks are changing from 1 July: what employers need to know

Updated 1 July 2021

The deadline of 30 June for EU, EEA and Swiss citizens and their families in the UK to apply to the EU Settlement Scheme has meant the Home Office has published new guidelines for employers on how to avoid employing people illegally. The changes summarised below can be found in the new guidance for employers on right to work checks and a draft Code of Practice on avoiding illegal working and resulting civil penalties.

The new Code of Practice will  apply to all right to work checks conducted from 1 July 2021. Now is the time employers should be reviewing internal policies and process flows as well as staff training on employer liability for all pre-employment and follow up right to work checks carried out from 1 July onwards.

Employers face civil penalties of up to £20,000 for each employee with no right to work if they have failed to carry out checks properly. (They can also face criminal penalties too if they had reasonable cause to believe an employee did not have to right to work). Though if they have carried out checks correctly they would have a statutory excuse against a civil penalty if for any reason it turns out they employed someone illegally. Following a break during the pandemic, compliance visits have resumed and fines are increasing again too.

The UK Government set a deadline of 30 June for EU, EEA and Swiss citizens and their families in the UK to apply to the EU Settlement Scheme to have the right to live and work in the UK. Up to then, employers could continue to use EU, EEA and Swiss passports and national identity cards when conducting right to work checks – even if the employment starts on 1 July or later. However from 1 July, all EU, EEA and Swiss citizens and their family members will have to provide other evidence of lawful immigration status in the UK for right to work checks.

Online right to work checks

Irish citizens will be able to continue to use their passport or passport card to prove their right to work. All other EU, EEA and Swiss citizens can no longer use their passport or national identity card to prove their right to work. Instead they will need to prove their right to work online from 1 July, like other visa holders with biometric residence permits.

Those who are eligible to have their status checked online can find a share code by accessing their online account. They can then share this code with potential employers to confirm their immigration status. Employers can then check their right to work online using the share code and their date of birth.

Right to work checks involving original documents

Employers will still need to check the original documents of UK and Irish citizens as well as any others without a digital immigration status.

Some new documents have been added to the list by the draft code. As before, there are some that afford employers a continuous statutory excuse to protect them from penalties for illegal employment, and others that are temporary and would require a follow up check, such as a Frontier Worker Permit.

Other new categories of permissible documents include Irish passports (current or expired) or passport cards; UK, Guernsey or Jersey certificates confirming an application to the EU Settlement Scheme made before 30 June and documents issued by Crown Dependencies EU Settlement Schemes and verified by the Home Office Employer Checking Service.

Delay to end of Coronavirus concession on remote right to work checks 

During the Coronavirus pandemic,  remote right to work checks meant employers did not need to lose out on statutory protection against illegal working penalties if new joiners sent scanned copies of their evidence, then held the originals up to camera on a video call, with dated records kept of these checks.

The Home Office concession allowing remote checks was due to end on 21 June but has now been extended until 1 September. This will be a relief for HR staff who did not relish insisting on in person checks for prospective staff before social distancing measures are lifted.

Employers must not get caught by the change, as the Home Office has resumed compliance visits as well as issuing fines for right to work check breaches.

The other good news is that the Home Office’s updated advice confirms employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive). The original plan was for firms to have to do the checks again after the disruption of the pandemic ended – a nightmare for companies with high turnovers of staff.

After 1 September, prospective employees will still be able to send their original documents by post or courier and employers check their likeness over a videocall if that is preferable to an in person check. Though not everyone may feel comfortable entrusting important documents to a courier service.

Employees who miss the EU Settlement Scheme deadline

New right to work check guidance warns employers to avoid discrimination while enforcing checks to prevent illegal working. Employers are not required to do any retrospective checks on staff where they have carried out a right to work check before 1 July 2021 – which the new draft code confirms. If initial checks were carried out correctly they will be enough to provide employers with a statutory excuse until the end of the staff member’s  employment (or the expiry of their visa if sooner)  to protect the employer from a penalty.

Home Office guidance published on 18 June 2021 explained what employers should do if after 30 June 2021 they happen to identify (for example following an internal audit or a voluntary retrospective check) an EEA national employee who has not applied to the EU Settlement Scheme by the deadline and does not otherwise hold any form of leave in the UK.

As a transitional measure, the new guidance sets out a process that employers may follow until 31 December 2021, if they identify an EEA national employed before 1 July 2021 who has not yet made an application. Essentially this will involve advising the employee to make an application within 28 days, contacting the Employer Checking Service once the employee provides a Certificate of Application and then retaining a copy of any Positive Verification Notice received from the Employer Checking Service (which provides a six-month statutory excuse), ensuring to conduct a follow up check before the six-month Positive Verification Notice expires.

The Home Office recently appear keen to stress that a generous approach will be taken to people who have applied late and provide numerous examples of circumstances where an EEA national may be considered to have reasonable grounds to make a late application and therefore have a further window to apply.

Another right to work check pitfall employers should avoid

I am increasingly hearing of HR staff using third party companies to carry out right to work checks. Employers must bear in mind that without directly seeing the evidence the Home Office requires them to, employers aren’t technically afforded the statutory protection from penalties if anything goes wrong.

Using a third party is better than nothing, but the Home Office guidelines are clear: checking the validity may be delegated to staff members, but the employer will remain liable for any penalty in the event the employee is found to be working illegally and the prescribed check has not been correctly carried out. Employer guidance makes clear:  “you may not delegate this responsibility to a third party.” Third parties such as recruiters and professional advisers may provide systems for such checks, but the responsibility for conducting them (and the consequences for not conducting them) remains with the employer.

To discuss right to work checks and employer liability further, please call us on 0207 033 9527 or click here to send me an email at vanessa@vanessaganguin.com.