FAQs – Right to work checks post 1 July 2021 – Updated

The rules relating to right to work checks that need to be undertaken for your existing and prospective EU workforce changed on 1 July 2021. Take a look at our FAQs below to understand how this might affect your business and recruitment strategy.

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I have EU employees who I’ve employed since before December 2020. Do I need to check if they have applied under the EUSS?

No – providing the right to work check you undertook was in accordance with Government guidance at the time, there is no need to check if the employee has now applied for settlement under the EUSS.

An EU employee joined our business in February 2021. Do I need to check if they have applied under the EUSS?

No – the position is the same as explained in the answer to the first FAQ above.

I have EU employees who I took on before 1 July 2021, but I want to make sure they have the right to work now and have applied under the EUSS. Can I do this?

Even after 1 July 2021, there is no requirement for employers to conduct a retrospective check to see if the employee has applied under the EUSS. As long the right to work check was conducted in line with the guidance at the time the employee started working for you, there is no requirement to carry out a further check.

However, there is nothing to stop an employer, who would prefer to check all EU employees have the right to work from 1 July 2021, from asking EU employees to prove their right to work in the UK as of today i.e. they have applied under the EUSS. However, the Government has made it clear that any employer who chooses to do this must undertake this process for ALL employees. This means that an employer cannot just target EU employees and ask them to provide evidence of their right to work but must ask all employees regardless of their nationality to provide up to date evidence of the right to work.

I’ve got an EU employee joining our business on 1 August 2021 – what should I ask them to provide to evidence their right to work?

Employers can no longer accept EU passports or ID cards as valid proof of right to work, except for Irish citizens. The Government guidance which can be found here, recommends the employer ask for one of the following:

  • Irish passport or passport card.
  • Frontier Worker Permit.
  • Proof of status under the EU Settlement Scheme, when verified by the relevant Home Office checking service.
  • Certificate of Application or document issued by the UK, Jersey, or Guernsey EU Settlement Schemes.
  • Proof of indefinite leave to remain or indefinite leave to enter.
  • Points-based system visas, such as the Skilled Worker visa.

What evidence should I ask for to prove new employees (or existing employees if choosing to do a retrospective check) have made an application under the EUSS?

Employers should:

  1. Ask the individual to provide a share code and their date of birth. If the individual does not know what this is, you will need to tell them to go online and follow the link: https://www.gov.uk/view-prove-immigration-status and follow the steps which will provide a share code.
  2. Once you have the information, follow the link: https://www.gov.uk/view-right-to-work. The website will ask you for the information and show you whether the individual has the right to work in the UK. If you are not sure whether the result shows the individual’s right to work, seek legal advice.
  3. Check the photograph online matches the individual.
  4. Retain a copy of the check and store securely keeping for the duration of employment and up to 2 years afterwards.

What should I do if I become aware an EU employee has not applied under the EUSS?

Such situations should be handled with care. Firstly, it is important to verify the source of the information. If the employee has informed you themselves, or you have been contacted by Immigration Enforcement, then this will be sufficient. However, rumour or speculation from elsewhere should be treated with caution and we advise seeking legal advice if you are unsure.

If you do receive irrefutable evidence that the employee has not applied under the EUSS, the Government has made it clear that it will not take action against employers. Transitional measures have been put in place to allow the employee time to make an application during which you can continue to employ them. These are:

  1. You must advise the employee to make an application. This should be done within 28 days.
  2. The employee should provide you with a certificate of application or CoA which they will receive once they apply.
  3. Contact the Employers Checking Service by following the link: https://www.gov.uk/employee-immigration-employment-status. If the employee has made an application, you should receive a Positive Verification Notice or a PVN which you should keep a copy of.
  4. The PVN is only valid for 6 months so you will need to ensure you ask the employee to tell you when they receive an outcome to their application. Once received, you can check the individual’s right to work by following the steps above under the FAQ: What evidence should I ask for to prove new employees (or existing employees if they choose to do a retrospective check) have made an application under the EUSS?

If you receive a Negative Verification Notice, you must consider whether to continue employing the individual. Legal advice should be taken before deciding.

We have closed our office because of the pandemic and do not intend to reopen until the middle of August. How do I conduct right to work checks for any new employee?

Up until 5 April 2022, employers are permitted to carry out right to work checks by video call instead.

To carry out the check, employers must:

  1. Request a scanned copy or photo of the worker’s original documents via email.
  2. Once you receive the copy, a video call is scheduled with the worker to verify the digital copy against the original document. This is done by the worker holding up the original to show you during the video call.
  3. Record the date the check was made on the copy by writing “adjusted check undertaken on [insert date] due to COVID-19”.

Records of each check should be retained in a safe and secure location for the duration of the employee’s employment and for a further two years after they stop working.

From 6 April 2022, all right to work checks must be carried in person.

If you have any further questions on changes to the rules on right to work checks, please contact us for more information. We’re happy to help.

Alex Christen

Partner

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