Policy clarifications and outstanding issues for right to work checks

In this article, ‘EEA national’ refers to EEA and Swiss nationals, other than Irish nationals.

The guidance, Employer right to work checks supporting guidance (previously called ‘An employer’s guide to right to work checks’) was updated on 18 June 2021 ahead of the end of the Brexit post-transition grace period on 30 June 2021. For further details of this update, see our earlier article here.

A further version was published on 2 July 2021. As anticipated, the 2 July 2021 version removes references to the outgoing regime of checks that have been superseded from 1 July 2021. Less obviously, it includes additional requirements in specific scenarios which may be missed by employers.

EEA nationals and their family members whose right to work was checked on or before 30 June 2021

There is no obligation for employers to undertake retrospective right to work checks on EEA nationals or their family members whose right to work had been checked on or before 30 June 2021.

There are however good reasons for encouraging EEA nationals and their family members to disclose whether they have made an application under the EUSS, and, if so, the outcome. Some of these are outlined in our previous article.

Employers should exercise a high level of caution if considering terminating a person’s employment in circumstances where they are unable to provide proof of EU Settlement Scheme (EUSS) status. Before taking any action, employers should consider the Home Office’s concession that allows certain existing employees to continue in employment while they regularise their immigration status by making a late EUSS application to regularise their immigration status.

If in doubt, please contact us for advice.

Individuals with an outstanding EU Settlement Scheme application made on or before 30 June 2021

Such individuals continue to maintain their right to work in the UK until their application and any related appeal is finally determined.

The guidance confirms that from 1 July 2021, EEA citizens with an outstanding online application made under the EUSS will be issued with a digital Certificate of Application (CoA). This will include instructions to the individual on how they can issue a share code to enable an employer to carry out a fully compliant online right to work check, and without having to use the Employer Checking Service (ECS).

If an individual made their EUSS application using a paper application form, they may not yet have received their Certificate of Application by the time a right to work check is needed. Some individuals may have an outstanding application to the EUSS in Jersey or Guernsey. In these cases, the employer should check and retain a copy of any letter or email issued by the Home Office (or Jersey/Guernsey Government) confirming receipt of the application, and then, provided they have the individual’s permission, complete an online form to ask the ECS to provide a Positive Verification Notice (PVN) and obtain a statutory excuse.

Those with an outstanding application to the EUSS in the Isle of Man cannot have this verified by the ECS and must wait until their status is granted before an ECS check can be made.

EEA citizens who have not made an EUSS application by 30 June 2021

Important additional requirements have been added regarding the transitional measure that allows the employer of an EEA national whose employment started by 30 June 2021.

The new guidance confirms the following additional requirements for using the concession:

• Once the employer has advised the individual to apply, the individual must provide the employer, within 28 days, with an EUSS CoA or EUSS email confirming receipt of the application

• The PVN from the ECS must be retained, along with the CoA/EUSS email and right to work check carried out on or before 30 June 2021 to have a statutory excuse for six months from the date of the PVN

Expired passports

Some countries have extended the validity of their passports due to processing issues relating to the COVID-19 pandemic.

The updated guidance confirms that where an individual is required to show their limited immigration permission in a current passport but has a recently expired passport, the ECS should be contacted and requested to issue a PVN. A copy of the expired passport and immigration endorsement should be retained, alongside the PVN, for an employer to have a statutory excuse against liability for a civil penalty.

This is a temporary adjusted measure in place up to 31 August 2021. As it is not yet clear whether this provision may be extended for some or all individuals beyond this date, employers should monitor for changes to the guidance towards the end of August.

Frontier workers

The employment of frontier workers in the UK may be for fixed periods, or may be continuous. It may also take place with the individual being on a UK or overseas payroll, or being a self-employed contractor. The risks and requirements in the area of illegal working may not be straightforward, so specific advice may be needed when dealing with right to work checks for this category of worker.

For checks carried out from 1 July 2021, an employer may obtain a statutory excuse against a civil penalty for illegal working where the worker can produce hard copy or online evidence that they hold a frontier worker permit. Most frontier worker permits are being issued digitally.

Although holding a frontier worker permit is mandatory to enter the UK in this capacity from 1 July 2021, it is not mandatory for a right to work check.

Some frontier workers may not yet have applied for a frontier worker permit or may have an application outstanding at the time a new employer is undertaking a right to work check. In cases where a new employee does not already have a frontier worker permit, the employer can use an online form to ask the ECS to provide a PVN and obtain a statutory excuse.

The most recent guidance confirms that if an employer uses the ECS to make a right to work check for an EEA national frontier worker, they must obtain and retain copies of the individual’s documents evidencing the exercise of rights as a frontier worker on or before 31 December 2020. The ECS may contact the employer to ask for these documents before issuing the PVN.

Each PVN will only provide a statutory excuse for six months from the date of the notice. What this means practically is that it will be a good idea to encourage the worker to obtain a frontier worker permit at the earliest opportunity, and certainly before any travel plans involving entry/re-entry to the UK.

Employers may choose to commence the employment of a frontier worker on or after 1 July 2021 based solely on alternative evidence of their status (and the guidance provides examples), however this will not provide a statutory excuse.

Adjusted right to work checks ending on 31 August 2021

The Home Office is intending to end COVID-19 adjusted right to work checks on 31 August 2021. Employers should therefore consider what measures they intend to take operationally to ensure fully compliant right to work checks can resume from 1 September 2021. We would suggest the following actions:

• Determine an internal policy for conducting right to work checks on the assumption this will be required from 1 September 2021 and ensure all relevant recruitment, HR and any other staff responsible for carrying out right to work checks are made aware of this in good time

• Use online right to work checks wherever possible (noting that the individual must be present at the time of the check, at least via live video link)

• Put adequate resources in place to securely receive, review and return physical documents required for manual right to work checks, and consider conducting manual checks with the individual being present via live video link rather than face-to-face

If you have any ongoing concerns about the end to adjusted right to work checks, please let us know so we can raise these with the Home Office.

If you would like to know more generally about how we can assist with right to work compliance, including our right to work e-learning module and template communications, please contact a member of our Immigration Team.