Overseas (migrant) workers must apply for their visa or permit before they travel to Scotland and the UK. If they do not have the required entry clearance documents, they can be refused entry to the UK and sent back home.
They can apply online depending where they are located. Normally they apply for their visa or permit to allow them to enter and work in the UK at a British Visa Application Centre – these are often at British Embassies, Consulates or High Commissions located around the world.
Applications made in some countries are frequently dealt with within a matter of weeks; in other countries they can take a couple of months.
It is important to allow adequate time for an employee's application to be processed as they will not be able to enter the country until this is complete.
EEA and Swiss Nationals
Right to work checks: Changes to the rules for EEA and Swiss citizens from the 1 July 2021 (updated on 31 August 2021)
Following the end of the Brexit Grace period on 30 June 2021, changes were made to the employers right to work guidance. This was changed from 1 July 2021 and again on 31 August 2021. Employers should always check the Home Office website for the latest guidance as it does change regularly.
Employers in Scotland can avoid the risk of incurring a civil penalty for illegal working of up to £20,000 by carrying out right to work checks. They do this by conducting right to work checks before the employment commences and on a repeat basis before the expiry of any time limited permission to work: to ensure that their employees have an immigration status permitting them to work in the UK.
From 1 July 2021 most EU, EEA and Swiss (EEA) citizens will have applied to the EU Settlement Scheme. They can no longer rely on an EEA passport to prove their right to work.
There are also special interim measures in place for EU, EEA and Swiss citizens in relation to right to work checks which apply if they have not applied in time to the EU Settlement Scheme. These are outlined below.
Existing EEA and Swiss Employees – are retrospective checks needed?
The latest government guidance confirms that it is not the responsibility of the employer to check that existing employees have applied to the EU Settlement scheme and there is no requirement for employers to undertake retrospective checks on EEA and Swiss citizens who commenced employment up to and including 30 June 2021. An employer will not be liable for a civil penalty if the initial right to work checks were undertaken in line with the guidance that was in place at the time the employer made the check provided that the employer is unaware that the employee doesn’t have the right to work(see Section 2 of the Employer right to work checks supporting guidance). For example, if you employed an EEA or Swiss citizen before 1st July 2021, as long as they had presented you with a passport at the time they were employed, no further action is needed on the employer's part.
If an employer does elect to carry out a retrospective check, it should follow the guidance (mentioned above) and should pay close attention to the code of practice for avoiding unlawful discrimination. If an employer becomes aware that an existing employee has not applied to the scheme, they should ensure that they follow the process mentioned below if relevant (as they may not be able to rely on any past right to work checks to gain a statutory excuse with this knowledge).
What if an employer comes across an employee who was employed before 30 June 2021 but has not applied for the EUSS in time or at all (either through carrying out a check or otherwise)?
There is transitional measure in place until 31 December 2021 which allows employers to continue to employ EEA and Swiss employees even if they did not apply in time to the EU Settlement Scheme in time. There is a non-exhaustive list of reasonable grounds for missing the deadline that includes matters such as mental health and medical treatment (full details are on the Home Office website).
Under the transitional measures, the government guidance states that employers should take the following steps. These measures only apply to EEA citizens employed prior to 30 June 2021:
- Inform the employee they must make an application to the EUSS within 28 days. Employers should signpost them to the Home Office website. Employers should avoid offering them any immigration advice as immigration advice is strictly regulated.
- The employee must then provide the employer with confirmation that they have been issued with a 'digital' or 'non-digital' Certificate of Application. Upon receiving this the employer must request a right to work check from the Home Office Employer Checking Service ('ECS'). If the employee does not apply within 28 days, then the Home Office guidance states that the employer should take steps to cease their employment but employers should seek legal advice before doing so.
- Once a valid application has been confirmed with the ECS, the employer should be given a Positive Verification Notice (PVN) – it is important that employers retain this along with a copy of the Certificate of Application (mentioned above) as these provide the employer with a statutory excuse for 6 months. The employee can usually continue in their employment during that time.
- If the individual is granted status before the expiry of the PVN period, they should be able to prove their right to work using the Home Office right to work online service.
- If they still have not been granted status after the expiry of PVN then you will need to do a follow-up check with the Employer Checking Service in order to maintain your statutory excuse. If their application is rejected, you will have to take steps to cease the employment.
How do employers carry out Right to Work checks for new EEA and Swiss recruits?
For EEA and Swiss citizens who begin work from the 1st of July 2021, employers will need to check their right to work either online or by checking the applicant's original documents where relevant. It is important for employers to know that EEA and Swiss passports can no longer be accepted for right to work documentation. If an employer does, they will not gain a statutory excuse.
To conduct a check online (which will be relevant for any recruits who have status under the EU Settlement Scheme), an employer must access the Gov.UK service 'View a job applicant's right to work details' and enter the applicant's date of birth and right to work share code. The employer should then do the usual checks and retain evidence of this check.
If the applicant's immigration status cannot be shared digitally, they can provide original documents instead (see section 2 of the government's guidance).
How do I deal with a new EEA or Swiss recruit who has not applied to the EU Settlement Scheme?
As of 6 August 2021, the government announced further temporary protection for late applicants to the EUSS. This states that those who make late applications to the EU Settlement Scheme or are joining family members of those who already applied, may be able to take up new employment with during the period of consideration of their application. Such individuals must provide a valid Certificate of Application, and the employer should verify this using the Home Office Employer Checking Service. This is an exceptional concession which is currently in place on a temporary basis. Employers should always follow the latest Home Office Guidance which is available here: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
Those who do not have are not eligible to apply under the EU Settlement Scheme will now usually require a visa to work in the UK.