Right to work checks from 1 July 2021

Employers will need to understand the new requirements, in particular for checking the right to work of EEA nationals and their family members.

In our recent webinar on 30 June 2021, we provided a rundown of the Home Office’s new prevention of illegal working guidance from 1 July 2021. Our in-depth article reviewing the guidance can be read here. We also discussed:

• How to avoid potential discrimination risks when running recruitment campaigns

• The options for conducting right to work checks, including retrospective checks

• Managing the logistics of manual checks following the end of the COVID-19 adjusted process

• How to minimise illegal working risks

• What to do when illegal working is identified

We have also addressed the wide ranging set of questions from attendees, which you can view below. You can also view the webinar in full.

In these Q&As, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. It excludes Irish nationals, who are already considered ‘settled’ in the UK. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS), and, unlike other EEA nationals and their family members, continue to be able to rely on their Irish passport or passport card for the purposes of right to work checks after 30 June 2021.

1. From 1 July 2021 will an EUSS check by itself be enough for EEA citizens or will we also need their passport/ID card in addition to the EUSS?

If you carry out an online right to work check for an EEA citizen at View a job applicant's right to work details - GOV.UK (www.gov.uk) using a share code the person has provided to you, you will not need to check their passport or national ID card.

2. If you have completed the Home Office online check (and an individual has a right to work until a certain date this year), do you also require to request a copy of their passport at this time or from 1 July 2021 (if they are joining after this date)? Or is the Home Office confirmation only required?

A compliant online right to work check is sufficient - doing an additional passport check is not required. You should schedule to do a follow-up check before the expiry of the person’s immigration permission.

3. After 1 July 2021, can we accept an expired EEA passport as proof of identity along with their pre/settled status?

A compliant online right to work check is sufficient on its own (checking the person’s passport is not required), however the person should be advised to log into their online account and notify the Home Office of their new passport details once they have been issued with a new passport.

4. If an employee, on their first day of work, presents a form of right to work that requires an ECS positive verification, does this mean they cannot work until the ECS check is returned?

Yes that is correct. To avoid the possibility of having to push a new joiner’s start date back, you can request evidence of right to work at an earlier stage than first day of work, eg at final interview or offer stage. You should request evidence of right to work from all new joiners at the same stage of the process to minimise discrimination risk.

5. We have a former employee we want to rehire that has pre settled status but passport has now expired. They are from Goa. I assume if we obtain positive verification he can work and he is in process of updating his documents?

See answer to question 3.

6. Can we use an ECS check for and then hire someone we have sponsored on skilled worker visa? They have been approved but we are still waiting for their BRP card?

You can use the ECS. You can do an initial (possibly adjusted) manual right to work check using the person’s short-term entry clearance vignette if they have been granted entry clearance. If they have entry clearance you must also verify the date they entered the UK and that this was during the validity of the entry clearance.

7. The online checks don't show if the status is pre-settled or settled. How can we know when people's pre-settled status expires? Are we obliged to monitor for the expiry of these, similarly to Skilled Workers or ICT etc?

The Home Office intends to update their systems after 30 June 2021 so that pre-settled status will show an expiry date. To check the expiry of a person’s pre-settled status where the person’s right to work was checked on or before 30 June 2021, you can ask (but not require) them to provide you with the grant email they received from the Home Office and note this for a follow-up check, or alternatively you can request permission to carry out a repeat right to work check after 30 June 2021, when the systems are due to reflect the expiry date for pre-settled status.

You are not obliged to monitor the expiry of pre-settled status for a person whose right to work was checked on or before 30 June 2021, however doing this is prudent to ensure you minimise the risk of disruption to your workforce in the event an employee fails to make a further application before the expiry of their pre-settled status.

To maintain a statutory excuse against liability for a civil penalty, you are obliged to monitor the pre-settled status expiry for any new employee whose right to work is checked on or after 1 July 2021, and ensure a follow-up check is carried out before the expiry.

For any pre-settled status holder, you can also ask (but not require) the person to give you an indication of the date they anticipate becoming eligible for settled status, and note this as a ‘soft’ reminder. The earliest date will be five years from the date they started living in the UK, and could be substantially ahead of the expiry date of the pre-settled status. Doing this is not necessary from a right to work compliance perspective, but may help to remind the person to apply for settled status at the earliest opportunity.

8. When carrying out online checks, I thought that we did not need to check the original passport or BRP, but your slide suggested that we still needed to certify these documents in addition to the online check. Can you clarify this please?

There is no need to check the original passport or BRP if you carry out a compliant online right to work check.

The date and time of online checks are logged on Home Office systems and on the migrant profile generated. You will still however need to have some means of demonstrating the following:

• Who carried out the check (as this person must be an employee of the employer, and the migrant profile page does not show this)

• That the checker is satisfied the person being employed is the person whose image is shown on the migrant profile

The Home Office’s guidance is not prescriptive about how to do this, however one way is to certify the migrant profile page with this information and retain a copy of this in a format that cannot later be altered.

You will also still need to copy and retain other relevant documents, such as proof of change of name, or proof of a Student’s term and vacation times.

We are happy to discuss your systems with you and provide an opinion on their compliance.

9. When you gain the share code and receive the document to check likeness and relevant permission to work – this document doesn’t confirm whether they hold settled or pre settled status. Therefore, how do we know whether to carry out ongoing checks and when?

See answer to question 7.

10. In what situation do you need to do a RTW check on an EEA family member? Is it not sufficient to do it for the employee?

It is only if your employee is the family member of an EEA national (e.g. if they are not an EEA national but have settled or pre-settled status because of being a family member of an EEA national) that you will need to do a right to work check for them. You will not need to do a right to work check on the family members of any employee.

11. For checks on Pre-settled/settled Status, this is digital so will be online. Do they also need to provide us with a copy of their passport?

See answer to question 8.

12. How do we know when they are eligible for settled status (EEA)? in the document from ECS says that 'you don't need to do the check again'. How do we know if it is settled or pre-settled status they have? hence when to make another check.

See answer to question 7.

13. 1. What is a reasonable time to wait for a candidate/employee to provide evidence of RTW? 2. Pre-settled status is for 5 years. Do we need to track the end date and ensure that they receive full settled status before the end date of PSS?

1. This will depend on the circumstances. If the person is a prospective employee, you should give them a reasonable opportunity to demonstrate their right to work, however you are not required to keep the job open for them if they fail to do so. We would recommend that employment offers include a clause stating that the offer is conditional on right to work being demonstrated. If the person is an existing employee, to minimise the risks of an unfair dismissal claim (for an employee with at least two years’ service), wrongful dismissal claim (for failure to properly pay notice) or discrimination claim, you should allow enough time to talk to the employee, investigate and come to an informed and well-articulated conclusion about whether to dismiss. See our presentation slides 33 to 35 or contact us for further information.

2. See answer to question 7.

14. My employee asked me: I already have EU pre-settled status for almost 2 years now but it will be 5 years since I came to the UK in September. Do you know if I should do anything now?

Assuming the employee has maintained the continuity of their residence in the UK over the five years up to September 2021, they may apply for settled status as soon as they have reached five years’ residence. They do not have to wait until close to the expiry of their pre-settled status.

15. If an employee has no EUSS status and returns home to the EU for a holiday, can they re-enter the UK?

This would very much depend on the circumstances. As the considerations are complex, we would recommend seeking specific advice on a case-by-case basis.

16. How can we differentiate on the verification form from the Home Office whether an individual has pre-settled or settled status?

See answer to question 7.

17. I am an Australian citizen with indefinite leave to remain which is stamped in a very old passport. Immigration do not add this to subsequent passports merely hand write - as seen in previous passport. Is this correct or should this be added to all new passports?

This is correct however you do have the option to have your evidence of indefinite leave to remain transferred to a biometric residence permit (BRP). If you need to provide evidence of your right to work to a new employer, you would need to do this for a compliant right to work check to be carried out, as an indefinite leave endorsement in an expired passport is not acceptable for the employer to obtain a statutory excuse against liability for an illegal working civil penalty.

18. We have checked our right to work documents with existing employees (passports). When these come to expire, will we need their right to work checking code, or will a document from list A or B (e.g. EU passport) still suffice? We also have their settled status letters on file, although I appreciate these are not proof of right to work

If you have carried out a right to work check on or before 30 June 2021 for an EEA national using an EEA passport or national ID card, you will not have to do a repeat check at all to maintain a statutory excuse against liability for an illegal working civil penalty. This is because for checks carried out up to 30 June 2021, EEA passports and national ID cards are List A documents which provide an ongoing excuse for the duration of the person’s employment. It is not necessary to carry out a repeat check when the relevant passport or ID card is due to expire.

However, you may choose to ask, but not require, EEA nationals who relied on their EEA passport or national ID card, or family members whose right to work check relied on an EEA family permit or residence card issued by the UK under EU law to provide you with evidence of having applied or having been granted status under the EUSS.

This may give you greater confidence in the stability of your workforce and may assist your employees to monitor the expiry of pre-settled status. It may also assist your employees to make a late application to the EUSS as soon as possible if they need to.

Other than Irish passports/passport cards, EEA passports and national ID cards have been deleted from List A from 1 July 2021. This means that right to work checks carried out on or after this date must be done in accordance with the revised Lists A and B.