As a direct result of the UK leaving the European Union, the rules on a worker’s right to work in the UK have changed

Transitional rules

Following Brexit, there was a transition period that allowed EU, EEA and Swiss (EEA) citizens (and their families) who were resident in the UK at the end of December 2020 to apply to the EU Status Scheme (EUSS) to remain in the UK. However, the deadline for applications has now passed (30 June 2021).

From 1 July 2021, EEA citizens and their families will be subject to the same immigration status rules as other foreign nationals.

Changes from 1 July

From 1 July 2021 the checks that employers must carry out to ensure that a worker is legally entitled to work in the UK have been updated. The Home Office has published a new checklist for employers listing the acceptable documentation. But the new checklist was not made available until the day the new rules applied, leaving employers and software developers with no time to prepare in advance.

The new employer guidance was published on 18 June 2021 and applies to right to work checks carried out from 1 July 2021. However, the guidance appears to have undergone a further revision on 2 July 2021.

Employed before 1 July

Where employment commenced prior to 1 July 2021, the checks that an employer was required to make varies and is dependent on the date a statutory excuse was established. This is set out on page 4 of the guide.

New Guidance

The latest guidance for employers, although lengthy, is comprehensive. It contains easy to follow instructions, examples of acceptable documents.

There are two types of checks:

  1. Manual document-based check (original documents)
  2. Online check – but not all individuals will have immigration status that can be checked online.
  3. Employers may be able to use the Employer Checking Service if the individual has an outstanding application, administrative review or appeal and the individual has given their employer permission to share this information. The guide provides further details on this process.
    The guide sets out the specific actions that an employer must take to establish a statutory excuse against liability for a penalty if it later transpires that the worker was illegal.

What are the main changes?

The main changes to the guidance are summarised as follows (please see the
guidance for specific details):

How EEA citizens will prove their right to work in the UK from 1 July 2021, which will exclude EEA passports, national identity cards and other EEA Regulations documents.

Acceptable documents that have been added includes Irish passport and passport card, a document issued by the Crown Dependencies of Jersey, Guernsey, or the Isle of Man and a frontier worker permit.

The temporary arrangements for the right to work checks to be carried out online by employers due to the Covid-19 pandemic.

The guidance clear sets out that employers should not just check the status of prospective employees who appear to be migrants. These checks apply to all potential employees, otherwise the employer is breaking the law.

Who Does it Apply to?

Common Error

One common error that many employers make, is to carry out the necessary checks on the worker’s first day of employment. Set out clearly in the guidance is that the necessary checks to establish a statutory defence against
a penalty must be carried out prior to employment.

Students

As the summer holidays are almost upon us, here is a timely reminder about employing students. Students may have limited permission to work during term times. Therefore, potential employers should obtain a copy of the dates
of the academic year and vacation times and retain this as part of their records.

The Right to Work Checklist

The Right to Work Checklist is a five-page document which sets out the physical checks that an employer must undertake using the original documents obtain from the prospective employee.

Previously, the employer checklist contained two lists: List A and List B. Employers only needed one document from List A or two documents from List B in a specific combination. However, the structure of the revised lists has changed, and List B has been divided in two. From 1 July 2021, List A contains a list of ten documents that an employer can accept including a passport (current or expired) showing the holder is British or a citizen of the UK and Colonies and has the right of abode in the UK.

The new List B has been divided into two groups. List B Group 1 contains seven documents such as a current Biometric Immigration Document issued by the Home Office indicating that the holder can stay and work in the UK.
List B Group 2 contains four documents which includes a Positive Verification Notice. This is issued by the Home Office Employer Checking Service to the employer or prospective employer indicating the named person can stay and work in the UK.

Step 2 in the process sets out clearly the six steps that an employer must take to carry out the proper checks on the documents presented. Employers must also ensure that the rightful holder is allowed to do the type of work offered.

Step 3 of the process provides clear instructions of what the employer or prospective employer must check and the information they must copy for their records.

The final step in the process helps the employer identify what type of statutory excuse they have and if a follow up check is required.

List A
If a document from List A was obtained for the check, then the employer has a continuous statutory excuse for the full duration of the person’s employment.

List B Group 1
If the documents were taken from List B Group 1, then the employer’s statutory excuse has a time limit which expires when the person’s permission to be in the UK expires. Therefore, follow up checks will be required.

List B Group 2
Documents from List B Group 2 also have a time limit which usually expires six months from the date specified in the Positive Verification Notice. It is important that a process is established by the employer to ensure that any
follow up checks required to ensure the worker is still legally entitled to work in the UK are made on a timely basis.

Non-compliance

Employers who fail to take the necessary action and are caught, are not only awarded a civil penalty, but the details of the company name and address are also published under the Name and Shame scheme. The penalties can run into £1,000s.

Employers who are serious or persistent offenders may also find that their business is temporarily closed by Immigration Officers. The illegal worker may have their wages seized and if prosecuted, could be
sent to prison for up to six months.

TUPE

Finally, the guidance (page 27) also confirms that when a business is sold under TUPE regulations, the right to work checks carried out by the seller are deemed to have been carried out by the buyer.
However, if it later transpires that the seller failed to carry out the necessary checks or follow up checks prior to the transfer of the business, then the buyer would become liable for any potential penalties. Therefore, it might be
prudent for the new owners to carry out their own checks when they acquire the business.

Links to Official Guidance

Employer guidance: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Employer checklist: https://www.gov.uk/government/publications/right-to-work-checklist

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