(updated February 2022)
All employers have a legal obligation to check that all their staff have a legal right to work in the UK before they can employ them, as it is illegal to employ a person who does not have permission to live and work in the UK (the Company can be prosecuted and fined if they do). Full details of what you need to know are in our article here.
All staff need to be treated the same (regardless of their nationality, place of birth etc.) so all staff must be checked. When a member of staff joins an employer they must provide evidence of their right to work in the UK by showing the company an original document from List A or List B (that the Government publishes). If a member of staff ceases to be entitled to work in the UK whilst in employment the employer may have no option but to terminate their employment.
In addition, on 30th March 2020 the Government announced that there would be changes to Right to Work in the UK checks, during the Coronavirus pandemic. You can read the details here.
In early January 2022, the Government announced that digital right-to-work checks are to be made permanent (after 5th April 2022, when the Coronavirus temporary measure were meant to end). Further information will follow but it is understood that the cost of the digital checks is to be funded by employers, with an individual check for UK Nationals costing between £1.45 and £70 each. The existing free online service can continue to be used for applicants from overseas, who have a Biometric Residence Card or Permit or a Frontier Worker Permit or an EU Settlement Scheme status. The online service will be expanded to checks on UK Nationals and ‘may be ready’ in time for 6th April!
On 17th January 2022, the Home Office updated their “Employer: right to work checks supporting guidance” for employers to give details of the new IDVT – Identity document validation technology – which will be available to verify the identify of individuals with a valid British or Irish passport (and Irish passport card). It is still not clear whether the technology will be ready by 6th April 2022. It is believed that Employers may still be able to do manual checks, rather than be forced to use the IDVT (and associated costs), but this is tbc!
The Immigration Act 2020 (right to work in the UK)
On 11th November 2020 the Immigration Act received Royal Assent. This means an end to free movement of people from the European Union to the UK (and of course the end of free movement of people from the UK to the European Union) on 31st December 2020.
From 1st January 2021 those wanting to come into the UK to work will need to apply for permission in advance. They will be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points.
The government is also introducing special schemes to enable more scientists, academics, investors, entrepreneurs, and health and care workers to come to the UK easily.
Irish citizens will continue to be able to enter and live in the UK as they do now.
How to treat EU Citizens working in the UK after 1st January 2021
Employers will be able to freely employ European Nationals who entered the UK up until 31st December 2020 (subject to the right to work in the UK checks, as described above), and should not discriminate against them.
Any EU national arriving or already living in the UK before 31st December 2020 must apply under the EU Settlement Scheme to have the right to stay in the UK (if they want to!). Their application must be submitted before 30th June 2021.
EEA and Swiss nationals can use their passport or national identity card to prove that they can work in the UK until 30th June 2021. Until this date Employers cannot require these citizens to prove their immigration status under the EU Settlement Scheme. Guidance is given in Annex B of the Government’s “An Employer’s Guide to Right to Work Checks” on how EEA nationals should be treated, and what documents are acceptable, during the period 1st January to 30th June 2021.
After 1st July 2021 employers must ask new EEA employees for proof of their immigration status – which will either be under the EU Settlement Scheme or via the new immigration system.
EEA nationals who have applied under the EU Settlement Scheme will not have a physical document to prove their status – their status will need to be verified online by the Employer.
Irish nationals are exempt from these arrangements, under the pre-existing Common Travel Area arrangements.
If you have any questions, please let us know!