Employing EU Nationals after Brexit? Thinking about Right to Work checks?

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As the Government’s recent “Time is running out” campaign has highlighted, there are new rules for businesses and citizens in the UK from 1st January 2021 when the Brexit transition period comes to an end and the UK continues the process of leaving the European Union.

But what does this mean for employers when it comes to checking whether their staff have the Right to Work in the UK, and what do employees from the EU need to do now?

The good news is that employers still have time – there are no changes to the way Right to Work checks should be carried out until 30th June 2021, even for employees who are citizens of EU or EEA countries, or Switzerland, provided that they arrived in the UK before 1st January 2021.  This means that employees can prove their Right to Work in the UK by showing their employer a valid passport or identity card from one of those countries.  However, now is a great time to make sure you understand what will be changing, so that you can be prepared and stay ahead.

That’s because from 30th June 2021 things will be different.  By that time, EU, EEA and Swiss citizens who wish to continue living in the UK, and who do not already have indefinite leave to do so, must have applied to the EU Settlement Scheme and have received Pre-Settled or Settled Status.  This means that employers will need to see proof of Pre-Settled or Settled Status as part of your checks after 30th June 2021 – but importantly, you cannot ask for proof of Settled or Pre-Settled Status before that date.

Pre-Settled status is granted to those who were resident in the UK by 31st December 2020 but who have lived in the UK continuously for less than five years at the point they apply to the EU Settlement Scheme, and it means they can remain in the UK for a further five years from the date it is granted, and then go on to apply for Settled Status if they wish.  Settled Status is granted to employees who have lived in the UK continuously for more than 5 years at the point they apply to the EU Settlement Scheme, and it means they can remain in the UK for as long as they like, and may also be able to apply for British citizenship if eligible.  Therefore, employees who will reach the five year period at some point before 30th June 2021 may wish to make their application then, so that they qualify for Settled rather than Pre-Settled status.

If you currently employ people who are nationals of the EU, EEA or Switzerland, it is a good idea to remind them to apply for Settled Status now – don’t leave it to the last minute because there will likely be a spike in applications as the deadline of 30th June 2021 nears.

For employees who arrive to live and work in the UK after 1st January 2021, a visa will be required under the UK Government’s new points-based immigration system.  These employees will be able to provide their employer with a ‘check code’ for an online system to prove their immigration and visa status as part of a Right to Work check – and the visa itself will only be issued to skilled workers who have a job offer from an approved employer sponsor.

British citizens will not be affected by any of these changes to Right to Work checks.

So, in summary – employers should:

  • Remind all current employees who are EU, EEA or Swiss nationals and their families to apply to the EU Settlement Scheme as soon as possible, and certainly before 30th June 2021
  • Continue current Right to Work checks until 30th June 2021 for employees who arrived in the UK before 1st January 2021
  • Ensure that employees arriving in the UK on or after 1st January 2021 have the correct visa as part of their Right to Work checks
  • Ask for proof of Settled or Pre-Settled Status as part of Right to Work checks, but only after 30th June 2021

The information in this article was accurate on 26th November 2020.

Further information

For specific advice for your business, please get in touch with our specialist Ashtons HR Consulting or Employment Law team through this website or by calling 0330 404 0778.

For all of our COVID-19 (Coronavirus) advice, please visit http://www.ashtonslegal.co.uk/coronavirus/


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