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Recruiting Staff from outside the UK after Brexit

Employers who have EU citizens working for them, or wish to recruit an employee from the EU, should be aware of changes to the system for checking the right to work of non-UK employees and the obligations of employers. The EU Settlement Scheme (EUSS) allows EU, EEA and Swiss citizens to get the immigration status they need to continue to live, work and study in the UK beyond 30th June 202. In order to apply to the EUSS, EU, EEA and Swiss citizens must have been resident in the UK by 31st December 2020. The government has set a deadline of 30th June for all EUSS applications.

Proving the right to work

In order to prove their right to work currently, job applicants can use any of the following:

  • their valid passport or national identity card (until 30th June 2021) if they are an EU, EEA or Swiss citizen

  • their valid biometric residence card (until 30th June 2021) if they are a non-EU, EEA or Swiss citizen family member

  • their digital status under the EU Settlement Scheme using the Home Office’s online view and prove immigration status service to generate a share code.

There will be no change to Right to Work checks until after 30th June 2021 and employers will not need to carry out retrospective checks on existing EU, EEA and Swiss employees.

However, for employees who arrived to live and work in the UK after 1st January 2021, a visa is 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.

EU, EEA and Swiss nationals recruited between 1st January 2021 and 30th June 2021

If an employer recruits an EEA national before the end of June 2021, they will be able to accept a passport or national identity card.

If the individual has obtained permission under the EUSS, they can share this with their employer using the online service.

EU, EEA and Swiss nationals employed from 1st July 2021

From July 2021, EU, EEA and Swiss nationals will need to show their employer:

  • proof of their Pre-Settled or Settled status under the EUSS or

  • one of the other prescribed documents under the existing arrangements.

Before July, the government has said it will publish revised guidance; employers need to monitor this guidance and implement the changes required.

There will be no need for employers to retrospectively check EU, EEA and Swiss nationals who were employed on or before 30th June 2021.

Evidence of Right to Work checks and record-keeping

As has always been the case when assessing the right to work, for each employee or worker, employers must keep a copy of the documentary evidence that shows they have the right to work. This should include a record of the date that the check was carried out. If the check was carried out online, a print or shot of the screen will be needed to prove that the checks have been carried out.

The records should be kept while the employee is working for the employer and for two years after that employment finishes.

What are the penalties for breaches?

If it is found that an employer is employing someone illegally without carrying out the required checks, they can face a range of sanctions, which can include:

  • a civil penalty of up to £20,000 for every worker employed illegally.

  • a criminal conviction, with a prison sentence of up to five years and an unlimited fine.

  • The business could be forced to close, and a court may issue a compliance order to see that it does.

  • The business will not be able to become a licensed sponsor for the points-based immigration system, meaning they will not be able to hire anyone from outside the UK

What should employers do?

Employers should research and become familiar with the Right to Work checks that will be needed for EU, EEA and Swiss nationals – both what is required now and what will become necessary after the start of July 2021.

Further government guidance will be issued in the run up to 1st July. This should be read, understood and implemented where required.

Where staff are eligible under the EUSS, they should be encouraged to apply in good time, and well before 30th June.

As always, checking the documentation will be paramount to getting the Right to Work system correct, so there need to be systems in place that are reliable and fit for purpose. This will include ensuring that all relevant staff have had the necessary training to follow the procedures.

It will also be necessary for employers to retain the records of checks carried out on all affected staff for two years after the end of the person’s employment.

The responsibility for making an application to the EUSS rests with the individual. However, there is no requirement for them to inform their employer about their application or its outcome. Likewise, an employer should not check that their employee has applied.

An employer must not discriminate against EU, EEA or Swiss citizens because of the UK leaving the EU, either as a prospective or current employer.

An offer of employment, or continued employment, cannot be made with the condition that an employee makes an application to the EUSS.

Employers should not try to interpret the information that the government provides on the EUSS, nor should they provide immigration advice for their employees, even inadvertently, unless they are qualified to do so.

Written by

Nkolika Oraka, Solicitor at rradar