Further information on EEA national right to work checks

The Home Office has released further details on conducting right to work checks on EEA national employees hired between 1st January and 30th June 2021. The release serves to further clarify existing advice given to employers, giving some reassurance and certainty to those hiring EEA nationals.

Most notably, the guidance now provides employers with explicit confirmation that there is no need to provide different treatment to EEA nationals based on when they entered the UK – whether before the end of the transition period on 31st December 2020 or from 1st January 2021. Instead, it confirms that so long as right to work checks are carried out correctly on these individuals in line with current guidance, employers will maintain continuous statutory excuse against a civil penalty in the event that an EEA national employee was found to be working illegally.

There has also been a change made to wording on the use of the online right to work check service to verify the immigration status of EEA nationals, which may be used instead of sighting and taking copies of passports or identity cards to verify nationality. Whilst the previous guidance placed emphasis on employers being permitted to verify immigration status only if volunteered by the employee, it now states that employers “may therefore invite those who already have status under the EU Settlement Scheme, or status under the points-based immigration system, to evidence their right to work using the Home Office online service”. Employers remain restricted from requiring EEA nationals to use only the online service or discriminating against employees wishing to provide their passport or national identity card for their right to work check instead.

Finally, further commentary has been provided on retrospective right to work checks on EEA nationals hired on or before 30th June 2021 from the 1st July. It remains confirmed that employers will not be required to carry out retrospective checks to confirm if EEA national employees have obtained a legitimate immigration status. The guidance does advise however, that employers may choose to carry out retrospective checks if they wish. Those wishing to do so must ensure that any retrospective checks conducted are not done so in a way that causes unlawful discrimination.