Upcoming changes in right to work checks

Whilst the Home Office is yet to release updated guidance for right to work checks, employers are reminded that from the 1st July 2021, European Economic Area (EEA) nationals will no longer be able to present their EEA passport or national identity card as proof of right to work in the UK, with the noted exception of Irish nationals who may continue to present the Irish passport or birth certificate.

Following the withdrawal of the UK from the European Union and the ending of freedom of movement on 31st December 2020, the Home Office introduced a grace period to allow employers to continue to accept EEA passports and identity cards as proof of right to work. This was intended to prevent any potential discrimination against EEA nationals already resident within the UK prior to the ending of free movement, who hold protected rights until 30th June 2020.

From 1st July, EEA nationals wishing to evidence their right to work in the UK must evidence a valid immigration status giving permission to perform the work in question – a process mirroring existing requirements for non-EEA nationals. An immigration status will be derived from either the EU Settlement Scheme for those with residency prior to 31st December 2020, or the points-based immigration system for any nationals entering the country from 1st January 2021. A small number of EEA nationals may have EU Settlement Scheme applications outstanding – these may be verified using the Employee Checking Service.

There is no requirement for employers to carry out retrospective checks on EEA nationals hired on or before 30th June 2021. Statutory excuse against a penalty will be maintained in the event that such an employee is found to be working illegally unknowingly to the employer.

Employers are also reminded that following the extension given by the Home Office in May, from 21st June 2021 the temporary provisions to allow remote right to work checks on physical documents are set to end. From this date, it presently stands that employers will be required to see and take copies the original right to work document in person, instead of accepting an electronic copy and performing verification over a video link.