The post-Brexit era: where are we now?
Bates Wells, London
The United Kingdom first voted to leave the European Union in 2016 and formally left on 31 January 2020. Free movement ended on 31 December 2020 and, on 1 January 2021, a six-month grace period began, during which eligible European Economic Arena (EEA) nationals and their family members who were resident in the UK by 2300 on 31 December 2020 were able to apply to the EU Settlement Scheme (EUSS). This grace period came to an end on 30 June 2021.
Individuals and organisations alike are now getting to grips with how the immigration landscape has changed in a post-Brexit era. Going forward, EEA nationals will be treated like non-EEA nationals, requiring immigration status to live and work in the UK. This article provides answers to some of the questions that organisations may have concerning the changes to immigration status.
What changed from 1 July 2021?
The first important point to note is that from 1 July 2021, EEA citizens will need evidence of their immigration status to live and work in the UK. They may no longer rely on their European passport or nationality identity card, as this only confirms their nationality. (Irish citizens may continue to use their passports or passport cards to prove their right to work.)
How do employers conduct right to work checks for EEA citizens from 1 July 2021?
There are two main ways in which right to work checks can be conducted:
- manual right to work check: the employer holds the original acceptable document(s) and checks them via the physical presence of the holder (this can be in person or via live video link); and
- online right to work check: the Home Office’s online service may only be used in limited cases where the applicant has a Biometric Residence Permit (BRP), Biometric Residence Card (BRC), status under the EUSS, status under the points-based immigration system, British National Overseas (BNO) visa or frontier worker permit. The applicant must provide the employer with their share code and then the employer may conduct the checks via the employer portal.
Is there any flexibility in how right to work checks are conducted?
Due to the Covid-19 pandemic, the Home Office introduced temporary Covid-19-adjusted right to work measures on 30 March 2020 and these have been extended to 31 August 2021 (inclusive).
The process involves the individual sending copies of their right to work documents to the employer via email or a mobile phone app, having a video call during which the employer asks the individual to hold up the original documents to the camera, checking the documents against the digital copies and recording the date on which the check was made with the following wording: ‘adjusted check undertaken on [insert date] due to COVID-19’.
In line with the easing of the lockdown measures, from 1 September 2021 onwards, employers will need to revert to either the manual or online right to work checks.
Are retrospective right to work checks required for EEA citizens hired on or before 30 June 2021?
There is no mandatory requirement for retrospective right to work checks to be conducted for EEA citizens who were employed up to and including 30 June 2021. Provided employers conducted the initial right to work checks correctly prior to employment commencing, they will maintain a continuous statutory excuse against liability for a civil penalty in the event that they are found to have employed an illegal worker.
In some cases, employers may choose to carry out retrospective checks and where this is done, care should be taken to ensure that this is handled in a non-discriminatory manner.
What should an employer do if a new hire (from 1 July 2021) has applied to the EUSS before the deadline but hasn’t received a decision?
Individuals who have submitted applications to the EUSS by 30 June 2021 will be issued with a Certificate of Application (CoA). The CoA is evidence of their right to work and employers can check this with the Home Office’s Employer Checking Service.
Individuals who have not received a CoA by 30 June 2021 will receive an automated acknowledgement email, which should contain wording on how to evidence their right to work until they are issued with a CoA.
What should an employer do if they find out that an existing employee hired before on or before 30 June 2021 hasn’t yet made an application to the EUSS?
Where an employer identifies that a current member of their workforce (employed on or before 30 June 2021) hasn’t yet applied to the EUSS, the Home Office has confirmed that employers are not obliged to end employment. Employees should be given a further opportunity to apply and transitional measures are in place to provide flexibility. This process is in place until 31 December 2021.
Provided the individuals were employed before the end of the grace period (30 June 2021), employers should advise the individuals to make an application to the EUSS within 28 days and provide the employer with the CoA. The CoA can then be used with the Employer Checking Service to confirm the individual has applied. A follow-up check must be done within six months of receiving a positive verification notice from the Employer Checking Service.
Conversations with the individuals should be handled in a sensitive manner.
What practical steps should employers take?
To avoid any unpleasant surprises, employers should:
- check that their recruitment processes are non-discriminatory; for example, that there is a fair selection criterion;
- review contractual documents to ensure offer letters and contracts of employment are subject to the right to live and work in the UK;
- assess the onboarding process to ensure it is fit for purpose;
- have a system in place for monitoring immigration status, including conducting right to work checks prior to employment commencing and diarising visa expiry dates so that follow up checks can be done; and
- provide regular and correct training to staff involved with the recruitment process throughout their employment.