Changes to UK Right to Work Checks – What You Need to Know

The UK Right to Work Checking System Has Changed
Changes to the right to work checking system for EU, EEA, and Swiss nationals applying for work in the UK took effect on Thursday 1st July 2021. Here we provide an overview of the changes, though all agencies and contractors who work with Workwell can rest assured that we will continue to take care of all right to work checks.

The Background

As part of the UK’s post-Brexit arrangements, the Government set up the EU settlement scheme, which offered citizens from the EU, EEA, and Switzerland who were living in the UK at the end of 2020 the opportunity to apply to secure their British residency before the end of the transition period.

As the EU settlement scheme has now ended, any EEA, EU, or Swiss nationals looking for work in the UK will require legal immigration status in the same way as other foreign nationals. They are no longer able to rely on their passport or national identity card to prove their right to work in the UK.

In anticipation of these changes, the UK Home Office issued an updated code of practice on preventing illegal working which took effect from Thursday 1st July, and revised their employer guidance on right to work checks.

A Summary of Employer Duties

As part of the code of practice, employers are required to complete pre-employment right to work checks against all new employees to ensure they have the legal right to work in the UK. If applicants have time-limited permission to work in the UK, follow-up checks are required to guarantee they continue to act compliantly.

Where checks are conducted in line with new Home Office guidelines, the employer is protected against a civil penalty of up to £20,000 per illegal worker should that individual be, or become, an illegal worker. However, if you cannot prove your due diligence, then no defense can be made against civil liability for illegal working.

When hiring new individuals, employers should make clear that all offers and contracts are strictly conditional on the individual having and retaining the right to work in the UK. If their right to work checks cannot be completed satisfactorily, this would impact the individual’s future employment.

What’s Changed?

From 1st July 2021, all EU, EEA, and Swiss nationals need to produce evidence of their lawful right to work in the UK.

Those that resided in the UK prior to 31st December 2020 must apply for settlement under the EU Settlement Scheme and in most cases, will have received digital evidence of their settled status, which employers can check online using the individual’s ‘Share Code’ and date of birth.

For those that arrive in the UK after 31st December, employers will need to obtain evidence such as a BRP / visa, in the same way as other foreign nationals.

Employers do not need this evidence for workers that were already employed before 1st July. Previous RTW checks will suffice as they were valid checks at the point of employment.

In summary, from July 1st 2021:

1. All workers from outside the UK and Ireland now require a visa/evidence of a right to work in the UK.
   Irish citizens can continue to use their passport or passport card to prove their right to work.
2. EU citizens that were living in the UK prior to 31st December 2020 should have applied for EU settlement status and will provide evidence of this at the point we employ them.
3. EU citizens that arrive in the UK from January 2021 onwards must have applied for a visa before arriving, which from 1st July 2021, we will need to see before we employ.
4. Non-EU citizens will continue to obtain visas much as they do currently, although some job types will need sponsorship under the skilled worker rules.

One further change refers to the Employer Checking Service (ECS) used to verify an individual’s right to work when they are otherwise unable to provide appropriate evidence. The updated code of practice states that if an ECS request is not considered within five working days, an automated response will be sent to the employer confirming they may hire the individual. This automated response is evidence that employers may use to provide a statutory excuse for illegal working if necessary.

However, when an automated response is received, employers are required to make clear to the employee that they are awaiting an ECS outcome and if a negative verification notice is received, this would impact their future employment. If following this automated response, a negative verification notice is received, the employer must carefully investigate before terminating an individual’s employment.

Penalties

The updated code explains that the civil penalty scheme can be applied as a sanction for employing illegal workers. The extent of the penalty will be calculated on a sliding scale dependent on the non-compliant behaviour.

However, if there is a statutory excuse provided by conducting the relevant right to work checks, then there will be no action taken.

FAQs

Are employers required to conduct checks on existing staff?

No. The code of practice indicates that no retrospective checks are required against existing EEA/Swiss national staff who commenced employment before 1st July 2021. However, if employers are concerned about the robustness of their previous checks, they are permitted to ask existing staff to provide evidence of application to the EU Settlement Scheme and their confirmed right to work status/frontier worker permit. It is important to note that existing employees are not legally required to provide evidence of this, however.

What if I learn an existing employee hasn’t applied to the EU Settlement Scheme?

According to updated guidance, transitional measures will be in place until 31st December 2021. Therefore, the employer will not have to immediately terminate employment should they learn that an individual has not applied to secure their right to work. However, employers should:

• Advise the employee to apply to the EU Settlement Scheme & provide a copy of their Certificate of Application.
• Use the Employer checking Service (ECS) to confirm the individual has applied.
• Await receipt of a positive verification notice. If a positive notice is received, a statutory excuse will be secured for six months, allowing the application to be processed.
• Conduct a repeat check before the Positive Verification Notice expires.

 

How does this impact Covid-19 adjusted checks?

Currently, temporary concessions can be made for checks performed based on scanned copies or photos of original documents. However, this is due to come to an end on 31st August 2021, so it is important employers carefully monitor the Covid-19 adjusted right to work checks for updates.

Here to help

We understand that when you’re recruiting hundreds of individuals quickly, it can be difficult to manage all their documentation compliantly. When we’re your outsourced payroll provider for CIS or Umbrella, we’ll take care of all of this for you. Once your contractors have completed their registration forms, our Agency Support Team will conduct instant ID and Right to Work checks in line with the updated code of practice. Using our fast and reliable world-class software which keeps an audit trail to prove you’ve done your due diligence; you can have complete peace of mind that you’re acting compliantly.