The importance of right to work checks
A person's immigration status impacts on whether they are permitted to carry out work in the UK. Under UK law, an employer can be liable for a civil penalty of up to £20,000 per person if they employ an illegal worker (someone who does not have current permission to work in the UK). There is also a criminal offence if an employer knowingly employs someone who does not have the right to work in the UK.
If the employer carries out the correct right to work checks, they will have a statutory excuse against the civil penalty provided that the employer was unaware that the employee did not have valid permission to work. It is therefore important for Scottish businesses to know how to complete these checks to protect the business from financial penalties. There are also reputational risks of incurring civil penalties (as the Home Office sometimes publish a list of employers who have been issued with civil penalties). In addition, a civil penalty for illegal working can in some cases result in the employer having its sponsor licence revoked. For businesses that need to have a sponsor licence to recruit the skills that they need to operate, this could have a very significant impact on their business.
The COVID-19 pandemic and the end of the Brexit transition period have both resulted in significant changes to the way that right to work checks are carried out. The key changes are set out below and include:
- Changes to right to work checks for EU, EEA and Swiss citizens since 1 July 2021 (the guidance was last updated on 31 August 2021).
The adjusted measures brought in (and extended) as a result of the COVID-19 pandemic.
Right to work checks for EU, EEA and Swiss citizens since 1 July 2021
Retrospective checks – are they required now that the deadline for EU Settlement Scheme applications has passed?
The Home Office has confirmed that employers are not required to carry out retrospective checks on their EEA and Swiss national employees who commenced work before 1 July 2021. Provided that the employer carried out a check in accordance with the Home Office guidance that was in place at the time that the check was carried out, no further checks are needed- even if the employer does not then know if the employee has applied to the EU Settlement Scheme or not.
If an employer does decide to carry out retrospective checks, the Home Office guidance states that employers should carry out such checks in a non-discriminatory way (see the code of practice here).
If an employer does discover that someone has not applied to the EU Settlement Scheme, then legal advice should be sought about the process to be followed. The most recent Home Office guidance should be consulted as this is subject to change: the updated guidance which was published on 31 August 2021 is here (https://www.gov.uk/government/publications/right-to-work-checks-employers-guide).
What situations might employers come across?
An employee has applied to the EU Settlement Scheme but not received an outcome
The Home Office guidance states that an employer can continue to employ the worker pending the outcome of their application provided that the Home Office Guidance is followed. The worker should have received a certificate of application or an email confirming receipt of their application. The online right to work check
can be used to verify the digital application has been made if the worker provides their share code. If the certificate of application is only in paper form or if the worker only has their receipt email, employers must use the Employer Checking Service to confirm their right to work. The employer should then receive a Positive Verification Notice confirming the individual's right to work which lasts for 6 months and is sufficient to give the employer a statutory excuse to the civil penalty above. If a negative verification notice is received, employers should consult the Home Office guidance.
If an employee was eligible, but failed to apply to the EU Settlement Scheme in time
If you discover that an eligible employee has not applied before the relevant deadline, the Home Office guidance is that the employer should signpost the employee to the EU Settlement Scheme. There are special transitional measures in place which apply before 31 December 2021 only. Please consult the Home Office guidance for full details.(https://www.gov.uk/government/publications/right-to-work-checks-employers-guide)
As part of those transitional measures, if the person applies within 28 days, the employee should receive a certificate of application which the employer can check using the employer checking service. If the employer obtains a positive verification notice, it will have a 6-month statutory excuse and can continue to employ the employee during this time whilst they wait for an outcome of their application.
Please note that an employer cannot give immigration advice unless they are a solicitor or regulated by OISC to give advice. But an employer can signpost the employee to the Home Office website and guidance.
If the worker does not apply under the scheme, then employers should take legal advice about the next steps.
EU, EEA and Swiss citizens may be able to apply to the EU settlement scheme after the deadline if they have "reasonable grounds" for missing the deadline. The government website: EU Settlement Scheme: information for late applicants, notes that: "The Home Office will take a flexible and pragmatic approach to accepting late applications and will look for reasons to grant applications, not to refuse them."
On 6 August, the government announced temporary protections for those who applied late to the EU Settlement Scheme. This states that late applicants will have their rights protected and that in some cases they may be able to take up new employment whilst waiting for the outcome of their application. Further details are in the Home Office guidance (https://www.gov.uk/government/publications/right-to-work-checks-employers-guide).
Employers should consult the current Home Office guidance if they come across this situation to ensure that they carry out right to work checks in accordance with the current rules.
Since 1 July 2020, the deadline for most applicants to the EU Settlement Scheme will have passed. From this date, EU, EEA or Swiss citizens will no longer be able to use their passports as evidence of their right to work in the UK if they are looking to start a new job. An EU, EEA or Swiss citizen's right to work can be checked online with their date of birth and share code or alternatively using original documents if they do not have a UK immigration status available to share online. If the individual does not have status under the EU Settlement Scheme, they will usually need to have an alternative visa that allows them to work in the UK.
For further details on right to work checks for EU, EEA and Swiss citizens see: https://www.gov.uk/guidance/right-to-work-checks-employing-eu-eea-and-swiss-citizens
Coronavirus adjusted measures extended until April 2022
On 26 August 2021, the government announced that the temporary adjustments made to the right to work check rules due to the pandemic will be extended to 5 April 2022. The temporary adjustments allow employers to complete right to work checks remotely.
The steps that must be taken when completing checks under the regime are set out in the guidance.
New guidance on how right to work checks will operate after these temporary adjustments is expected in advance of 6 April 2022.
For further information on the extension of the temporary adjustments, see: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks#checking-an-individuals-right-to-work-using-the-temporary-covid-19-adjusted-check-measures
The Home Office is exploring a new long term secure online system as an option for the future following the success of the temporary adjustments brought in due to the coronavirus which the government has said has received positive feedback about.
The information contained in this article has been provided by TalentScotland’s immigration partners. It is for information only, is not intended to be construed as legal advice, and should not be treated as a substitute for specific advice. The information is based on the law in force at the time and the law is subject to change.