On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks. This has been published ahead of significant changes to right to work checks affecting EEA/Swiss (EEA) nationals and their family members from 1 July 2021.

The guidance answers the question of what employers should do if they find out an existing employee has failed to apply to the EU Settlement Scheme (EUSS) by 30 June 2021, but is silent on the position for EEA nationals who started work unlawfully in the UK between 1 January 2021 and 30 June 2021.

It is important to be clear that the changes to right to work checks apply only to checks carried out on or after 1 July 2021. Retrospective checks are not required for EEA nationals or their family members whose right to work was checked by 30 June 2021, even if their employment starts after this date.

An employer who has carried out a compliant check will continue to have a statutory excuse against liability for a civil penalty if the employee is later found not to have the right to work in the UK. However, the employer may still have to terminate the person’s employment unless a transitional measure applies.

The change with the biggest practical impact is that an EEA passport (other than an Irish passport or passport card) or EEA national ID card will no longer be acceptable evidence of right to work.

There is also scope for employers to be confused about whether a BRC has been issued in accordance with EU law (not acceptable) or under the EUSS (acceptable). To minimise the risk of making a mistake, employers can invite, but cannot require, EEA family members to provide them with a share code to do an online right to work check rather than relying on their BRC. The guidance confirms the Home Office intends to phase out BRCs as an acceptable right to work document from early 2022.

The question of what to do if it comes to light an employee has not applied under the EUSS by 30 June 2021 is one that has been causing employers concern in recent months. This is because there is a criminal offence of knowing, or having reasonable cause to believe, that an employee is working unlawfully. Illegal working is also an offence for the individual.

The guidance is comforting for employers, because it makes it clear that the Home Office is not intending to prosecute employers who have employed an EEA national on or before 30 June 2021 in good faith and with a compliant right to work check.

Until 31 December 2021, a pragmatic transitional measure has been put in place to cover existing employees failing to apply under the EUSS. Perhaps unintentionally, the transitional arrangement only covers EEA nationals with employment commencing on or before 30 June 2021, leaving a gap for those whose right to work check was undertaken by 30 June 2021 but whose employment does not commence until 1 July 2021 or after. It also does not cover family members of EEA nationals. It should be noted that the transitional measure does not apply to new employees due to start work on or after 1 July 2021. Where an individual needs to make a late application to the EUSS in that scenario, the Home Office advises employers not to start the employment until EUSS status has been granted and checked.

Some EEA nationals who entered the UK on or after 1 January 2021 will have worked unlawfully here if they are not eligible to apply under the EUSS. This is because they will (perhaps unknowingly) have entered as a visitor rather than under EU free movement rights, which ended on 31 December 2020.

Given that EEA national passports and national ID cards are still acceptable evidence of right to work up to 30 June 2021, it would not be surprising if some individuals may have been confused about their rights. The problem may not be picked up until some point in the future, for example if the employer chooses to undertake retrospective right to work checks, during examination on a future entry to the UK, or in the course of a sponsor compliance audit or Home Office illegal working or other enforcement operations.

This separate group of individuals are not covered in the guidance at all. The transitional measure will not apply to them as they are not eligible to apply under the EUSS, so employers will have to commence the termination process once the issue has come to light.

It is to be hoped that further guidance from Home Office will be forthcoming on how this issue will be dealt with, particularly because if an affected individual attempts to regularise their immigration status, there is a risk of refusal due to working in breach of immigration conditions and/or overstaying (if the person has remained in the UK for more than six months).

Employers may wish to consider the following suggested action points:

• Update the information provided to employees for right to work checks to be carried out from 1 July 2021, ensuring the amended Home Office acceptable documents are included
• Determine whether to undertake retrospective right to work checks for EEA nationals (aside from Irish nationals) and family members whose right to work check relied on documents issued under EU law – this should take place on or after 1 July 2021 and ideally by 31 December 2021 to make use of the transitional measure if needed
• Promote awareness of the COVID-19 EUSS guidance and events that could break continuity of residence, tying this in with the business’s working from home abroad policy if the business has one
• Continue to encourage the disclosure of EUSS grant (both for pre-settled and settled status), and diarise any pre-settled status expiries for repeat checks
• Consider sending communications to staff highlighting that settled status applications can be made as soon as a person has accrued five years’ continuous residence, or if certain circumstances are relevant, they can apply earlier
• Consider offering to log a reminder for employees with pre-settled status, flagging the earliest date they may qualify for settled status (or advising them to set a reminder for themselves), as well as encouraging employees to disclose grant of settled status

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If you have any specific questions you would like advice on, then please contact: Li Xiang Li.Xiang@lewissilkin.com or Koichiro Nakada koichiro.nakada@lewissilkin.com of Lewis Silkin LLP.