Further right to work check changes and how to avoid some pitfalls

Amendments to the Employer right to work checks supporting guidance (also known as ‘An employer’s guide to right to work checks’) were made following an announcement by the Home Office on 6 August 2021. The announcement confirms that EEA and Swiss (‘EEA’) citizens and their family members who missed the 30 June 2021 EUSS deadline will have ‘temporary protection’ of their rights until any late application they make is finally determined (including any appeal if relevant).

The announcement also confirms that joining family members will have temporary protection for the first three months after they arrive in the UK, and while an EUSS application submitted within those three months is pending (including the up to the finalisation of any appeal if relevant). Immigration Rules due to come into effect on 6 October 2021 will enable joining family members to switch from visitor status to EUSS in-country, however there is currently still some uncertainty over how these people will be considered by Border Force in practice on arrival.

Despite these changes, in some cases we have seen that for late applications made on or after 1 July 2021, individuals have been issued with a Certificate of Application (CoA) noting that they do not have the right to work. In this situation, we would suggest that an Employer Checking Service check is carried out despite the apparent prohibition on working, and for the individual to contact the Home Office to request an amended CoA.

Right to work process for people who have made an EUSS application on or after 1 July 2021

The guidance now confirms that a person who has made a late EUSS application on or after 1 July 2021 will have a right to work while it and any related appeal is pending. Although it is not explicitly stated in the guidance, based on the Home Office’s announcement on temporary protection, it appears that a joining family member who applies under the scheme more than three months of their arrival will not have a right to work.

If an employee or prospective employee has been issued with a ‘digital’ Certificate of Application (CoA), this will enable them to issue a share code for an employer to conduct part of a right to work check online. However, for this scenario, the online system will signpost the employer to also carry out a check through the (ECS). Once the ECS check is completed, the employer should retain the resulting Positive Verification Notice (PVN) and carry out a further right to work check within six months of the date of the PVN. It is not clear whether an employer is required also to keep a screenshot of the online profile page if the person has been issued with a digital CoA, however this may be prudent.

If the person has a ‘non-digital’ CoA, i.e. a letter or email from the Home Office, the employer must take and retain a copy of this, and then also proceed to obtain and retain a PVN from the ECS.

Right to work process for people employed by 30 June 2021 who have not yet made an EUSS application

The guidance states that if it comes to light that an existing employee who started work on or before 30 June 2021 failed to apply under the EUSS by the 30 June 2021 deadline, their employer can continue to employ them. The employer must advise them to apply to the EUSS within 28 days. The employer should then carry out a right to work check based on the application having been made. They should only take steps to terminate the person’s employment if the person still has not applied after 28 days.

The previous 31 December 2021 end date for this policy has been removed from the guidance, and it has been made more prescriptive about the documentation the employer must keep, i.e. a copy of the individual’s CoA and a PVN from the ECS. Again, it is not clear whether an employer is required also to keep a screenshot of the online profile page if the person has been issued with a digital CoA, however this may be prudent.

Indefinite leave to enter or remain endorsements for EEA nationals

The guidance confirms that if an EEA national holds indefinite leave to enter or remain under the Immigration Rules, they may rely on this for a right to work check.

One potential issue that may arise for this group is that such an endorsement may be in an expired passport. Where this is the case, a new employer checking right to work on or after 1 July 2021 will not be able to use this to form the basis of a statutory excuse against liability for an illegal working civil penalty. The person would need to apply for a Biometric Residence Permit (BRP) for a compliant right to work check to be completed. While any BRP application is pending, the person’s right to work could initially be verified by using the ECS and requesting a PVN. The employer would then need to carry out a repeat check before the PVN expires, either on the issued BRP or by carrying out a further ECS check (if the application is still pending at that stage).

If an employer chooses to carry out a retrospective check for an EEA employee who started work on or before 30 June 2021, there will be no need for that person to apply for a BRP. A statutory excuse will remain available if a compliant right to work check was completed before the employment began. This may have been completed using the person’s EEA passport, or the indefinite leave endorsement if it was in a valid passport at the time of the check, or in an expired passport where the check was carried out before 16 May 2014.

EU Settlement Scheme family permits and EEA family permits

The current guidance is clear that a valid EU Settlement Scheme Family Permit can be used to form the basis of a statutory excuse, provided the employer takes a copy of the passport information page as well as the permit.

EEA family permits ceased to be valid after 30 June 2021, even if the date of expiry endorsed on them is later than this. These cannot currently be relied upon for a right to work check.

Biometric residence cards issued by the UK in accordance with EU law

Biometric residence cards (BRCs) issued under EU law ceased to be valid after 30 June 2021, unless the holder has been granted status under the EUSS. Currently there is no confirmation in the guidance about how an employer can adequately verify that an individual has EUSS status when carrying out a manual check of a BRC. To err on the side of caution, an employer presented with a BRC may therefore wish to consider conducting an online check based on the person’s EUSS approval or their BRC details instead.

COVID-19 adjusted right to work process

The COVID-19 adjusted right to work check process was due to end on 31 August 2021 but has been extended to at least 5 April 2022. For further information on this announcement, see our previous article here.

If you have any queries about the issues covered in this article, please contact a member of our Immigration Team or sign up for our Immigration Law Academy on 22 and 23 September, where we will be looking at recent right to work changes in detail.