The Home Office recently updated its guidance in respect of what UK employers should be doing to check whether EEA nationals and their family members have the right to work during the post-transition grace period. Below is a summary of the main updates and how this will impact employers for the next two months:

  • What is the post-transition grace period? 

After the Brexit transition period and the end of free movement, on 1 January 2021 we entered what is referred to as the post-transition grace period. This period will expire on 30 June 2021.

  • Where can the updated guidance be found relating to right to work checks for EEA nationals during the grace period? 

The guidance for right to work checks during the grace period can be found here: Guidance - Annex B.

The updated guidance covers the ability to check right to work documentation issued under the Immigration Rules and carrying out retrospective right to work checks for existing employees.

  • Can I ask my employee for proof of settled or pre-settled status before 1 July 2021?

No, an employer cannot ask for proof of settled or pre-settled status, but they can accept it as proof of right to work if it is offered by the employee. Employers are however allowed to refer to settled or pre-settled status but cannot require or force employees to provide it. Employers can also inform and remind employees that it will be necessary for the employees to obtain such status prior to the deadline. The guidance makes it clear that right to work check for EEA nationals will not change until 1 July 2021 and until that date, EEA nationals can still use their passport or national identity card to evidence their right to work.

The updated guidance is clear that employers should help their employees to obtain the appropriate immigration status that they need to be able to work in the UK from 1 July 2021. Employers may wish to consider sending comms to their employees ahead of 1 July 2021 explaining the existence of the settled and pre-settled status process and why it is important that they are aware of it.

  • Can retrospective checks be carried out on EU nationals?

There is no mandatory requirement for retrospective checks to be undertaken on EEA nationals who were employed on or before 30 June 2021 and employers will maintain a continuous statutory excuse against a civil penalty as long as the initial right to work check was carried out in line with the guidance and relevant legislation. We know this was a major concern for employers.

Nevertheless, employers who wish to carry out such checks are permitted to do so as long as they are conducted in a non-discriminatory manner. The updated guidance references the Home Office’s code of practice on avoiding unlawful discrimination while preventing illegal working, but the updated guidance doesn’t expand further or provide much detail as to what a ‘non-discriminatory manner’ means. Given the nature of these changes to right to work checks, it will be tricky for employers not to focus solely on EEA nationals as the changes only affect them and not UK or non-EEA nationals. This is potentially something the Home Office hadn’t considered when updating the guidance.

This combined with the potential for criminal and civil penalties means employers will be conscious of getting their checks right to avoid any liability. One way to minimise any discrimination risk could be for employers to carry out retrospective checks as part of an overall audit of all employees post-June 2021. This way the employer would be looking at all employees’ right to work in the UK and not just EEA nationals.   

  • What happens if an EEA national is unable to provide an employer with acceptable documents due to an outstanding application under the EU Settlement Scheme?

The updated guidance makes it clear that if this happens, employers will need to contact the Employer Checking Service to establish a statutory excuse as they would have done previously where an employee had an outstanding application – they will need to provide the individual’s full name, date of birth, home address, nationality, job title and hours worked per week and Home Office reference number or case ID (if they have either). Employers also need to see the individual’s original Application Registration Card or Certificate of Application if this is what needs checking.

  • Will there be further guidance for right to work checks from 1 July 2021? 

It is likely that new guidance containing the requirements for right to work checks for EEA nationals from 1 July 2021 will be published by the Home Office before this date. Given the move to online checking of right to work status is already in motion, it is not expected that the requirements will be very different and that employers’ existing processes for right to work checks will only need to be tweaked slightly to accommodate the changes.