Changes to Right to Work Checks

From 1 July 2021, there are important changes to the government’s right to work checks. To support employers with EU staff to better understand these changes we have put together some key points for you.

Who the new checks are for

• Employers are required to carry out right to work checks on new staff recruited from 1 July.
• There is no requirement to undertake retrospective checks on staff who commenced employment with your company before 1 July 2021. In fact, singling out employees on the basis of their nationality can constitute a form of discrimination that can have serious consequences on your business.
• Remember: people with status under the EU Settlement Scheme (EUSS) can be EEA nationals, who will have IDs issued by a country in the EEA, but also their family members, whose ID may be issued by any country in the world.

How to conduct right to work checks for job applicants with EUSS

• Ask the job applicant to provide you with their date of birth and share code. If they struggle to issue a share code, this two-minute video shows them how (subtitles available).
• Use the government’s online service to input the share code and view their status. You can see how in this short video for employers.
• Keep a copy of the electronic confirmation of status, including two years after employment ended.
• Remember: you will also be required to view new applicants’ ID. But there is no further physical proof of their right to work. All checks are conducted and filed online.

Job applicants with Pre/settled Status

• If a person has been granted ‘Settled Status’, they will have a continuous right to work (Indefinite Leave to Remain). You will not have to check their right to work again.
• If a person has been granted ‘Pre-Settled Status’, they will have a time-limited right to work and you must carry out a follow-up check. The Home Office online service will advise when a follow-up check must be carried out.

Job applicants without status

• The Home Office is still processing a backlog of 400,000 EUSS applications, and it is likely that many people will not have their status confirmed for months. This does not make them undocumented workers, and you can still employ them.
• If you identify a job applicant without confirmed status, you should not withdraw the offer of employment.
• Instead, advise them to provide you with a Certificate of Application (CoA). The CoA is issued by the Home Office to EUSS applicants. It enables employers to check right to work even when the Home Office is still processing the application, by using a separate online service called the Employer Checking Service.
• More information about conducting right to work checks for people with pending applications can be found on page 42 in this Home Office guidance.
• If the job applicant has not yet made an EUSS application at all, you can advise them to make one. But without a CoA, you will not be able to check their right to work or to employ them.

Make sure you don’t discriminate

• Remember that while you have a duty to conduct right to work checks, you also have a duty not to discriminate on the basis of nationality.
• This applies to current staff, but also to prospective job applicants. You cannot alter an employee’s work conditions (for instance, by asking them to take time off while their EUSS application is being processed by the Home Office), and you cannot withdraw a new job applicant’s offer of employment whose status is still pending.
• There is also no requirement for current staff to inform you, as their employer, that they have applied to the EUSS, or to share the outcome of their application. Likewise, you should not check that an employee has applied. New checks only apply for new staff.

Employing people with a visa

• On 1 January 2021, the UK introduced a points-based immigration system which replaces EU freedom of movement.
• If you want to recruit staff from abroad, including from the EEA, you now need to be a licensed sponsor. Anyone you want to hire from outside the UK, excluding Irish citizens, will need to apply for permission in advance. Further information is available at gov.uk/HiringFromTheEU.

Resources

• If you need help carrying out a right to work check you should call the Home Office Employer Enquiry helpline: Telephone: 0300 790 6268 Monday to Thursday, 9am to 4:45pm Friday, 9am to 4:30pm
• The Home Office’s employer toolkit on EU staff.
• Home Office employer right to work checks supporting guidance: Annex C EEA citizens (page 39).
• How to check right to work with share code – Work Rights Centre.