All UK employers have a duty to ensure when they hire employees that the individual has a Right to Work in the UK.

Prior to BREXIT (1 January 2021), this meant that a UK Employer could employ nationals from countries within the European Economic Area (EEA) who had the freedom to live and work anywhere within the EEA (which included the UK).

As part of the BREXIT withdrawal arrangements, the EU Settlement Scheme (EUSS) was launched in the UK. EEA nationals already living, working or starting work in the UK were required to apply for the EU Settlement Scheme on or before 30 June 2021

It was the responsibility of the individual and not the employer to apply to this scheme.

Existing Employees

1.     Prior to BREXIT 31 January 2021

An employer can maintain a continuous statutory excuse against a civil penalty fine of up to £20K per employee, if the initial Right to Work check undertaken before commencing employment was in line with the Home Office’s guidance in place at the time.

However, an employer cannot rely solely on a Right to Work check if the employer knows or has reasonable cause to believe the employee does not have the right to work in the UK.

2.     Applied for EUSS (before 1 July 2021) but not yet granted status.

If an EEA national has applied for the EUSS up to an including 30 June 2021, but not yet been granted status, they can continue to live and work in the UK until their application is finally determined.

If this is the case, they will have been issued with either

• An EUSS Certificate of Application [CoA]

or

• An EUSS email confirming receipt of their application

An employer can seek to establish their Right to Work in the UK by using the Home Office Online Checking Service.

3.     However, where an EEA national has reasonable grounds for missing the EUSS application deadline (30 June 2021), they may have a further opportunity to apply under a transitional measure (until 31 December 2021).

In these circumstances, if an employer identifies that an eligible EEA employee has not applied by the EUSS by 30 June 2021, you do not need to terminate their employment, providing they have been employed by you, in the UK prior to the end of grace period (30 June 2021)

Instead, the employer must advise the employee (ideally in writing) that they must make an application to the EUSS within 28 days so they can provide a Certificate of Application (CoA) to you (employer) to enable you to carry out online check (using the Employers Checking Service). This will confirm if the individual has applied and provides the employer with a statutory excuse against a civil penalty for 6 months.

If the employee fails to make an application within 28 days, the employer may then need to consider/take reasonable process to take steps to terminate their employment.

New Employees

4.     Applies for a job after 30 June 2021,

If an EEA national applies for a job after 30 June 2021, but has not applied to the EUSS by 30 June 2021 and has no alternative immigration status in the UK, then they will not be able to pass a Right to Work Check and should not be employed.

5.     Applicants who are EEA nationals with pre settled or settled status

During the recruitment process they should be asked to provide a valid share code.

The applicant can log into https://www.gov.uk/proce-right-to-work to generate a share code (valid for 30 days).

The employer uses this share code and the applicant’s name and date of birth to carry out an online check by logging into https://www.gov.uk/view-right-to-work.

The employer will be able to check if the applicant has the right to work and that the photo in the online check is of the candidate, either by seeing them in person or by video call.

The employer can then print and retain a copy of the response provided by the online right to work check (electronically and/or in hard copy) for the duration of employment and for 2 years afterwards. The employer should keep a record of the permission expiry date so a follow-up check can be done.

6.     Applicant is applying from abroad

An employer needs to hold a Skilled Worker Sponsor Licence if they wish to employ anyone from overseas to a job role paying at least £25,600 p.a. for skilled workers.

Applicants will need pass a prescribed English language test and employers can expect to incur Home Office fees in excess of £5,600 per person for a 3-year Visa.