With changes to the way in which employers are required to conduct their right to work checks to be imposed imminently, it is vital that businesses who recruit EU, EEA or Swiss Nationals make themselves aware of their updated obligations and commence preparations for the changes as soon as possible.
The UK Home Office has now published its “DRAFT Code of practice on preventing illegal working: Civil penalty scheme for employers”, detailing the Government’s proposed updates to the way in which employers must conduct right to work checks from 1 July 2021, which marks the end of the six-month grace period which followed the UK’s exit from the European Union.
The proposed changes set out in the Draft Code are primarily centred around the way in which EU, EEA and Swiss Nationals prove their eligibility to work in the UK. These changes are due to come into effect on 1 July 2021, which will not afford businesses with much time to prepare for the changes once they have been approved. Employers need to ensure that they are fully aware of the changes in the law to avoid the risk of any liability for a civil penalty.
Key Changes to the Law
The Code sets out the proposed key changes that employers need to be aware of:
Acceptable Right to Work Documentation – the list of acceptable documentation to be provided by an employee (or potential employee) for a manual right to work check is set to change:
- Both List A and List B documents will be amended considerably and should be reviewed by all employers.
- Most significantly, passports and national identity cards showing the holder is an EU, EEA or Swiss national will no longer be accepted as valid proof of right to work in the UK. Many will be expected to provide digital evidence of their UK immigration status arising from applications under the EU Settlement Scheme or as Frontier Worker Permit holders, with others providing alternative suitable documents such as endorsements in passports and vignettes.
- There will also be additional entries into the lists for nationals of Ireland, the Channel Islands and the Isle of Man.
COVID-19 Adjusted Checks – the temporary measures put in place by the Government regarding how employers can conduct right to work checks from 20 March 2020 were due to end on 20 June 2021. With a pause to the progression from Step 3 to Step 4 of the Government’s Roadmap out of lockdown, the Home Office has now confirmed that remote right to work checks can continue to be undertaken until 1 September 2021.
- From 1 September 2021, employers will be required to conduct online checks using the tools available on the gov.uk website, carry out the checks face-to-face with the original documentation present or by prospective employees posting their valuable documents to the employer for checking.
- If a right to work check has been conducted virtually in line with the adjusted guidance between 3 March 2020 and 1 September 2021, employers will maintain a defence against a civil penalty and retrospective checks are not required to be conducted. It is important to ensure that any checks conducted on or after 1 July 2021 are done so in line with the new Code of Practice in order to maintain a defence against a civil penalty. Whilst the Home Office has not yet updated the draft Code to reflect this change in the end date for adjusted checks, it is expected that the final version will include the end date of 01 September 2021.
As detailed above, the changes to right to work checks will come into effect on 1 July 2021. With time of the essence, it is crucial that organisations begin to take steps now to prepare themselves for the updated legislation.
Furthermore, the changes will also be applicable for any existing employees where initial right to work checks have been conducted prior to 1 July 2021, but where follow-up checks are required on or after 1 July 2021.
How to Prepare for the Changes
Despite the Code still being in draft form, it is a clear indication of what the final documentation will look like and provides an overview of the steps that employers need to take now.
Employers should ensure that all relevant staff are trained on the updates and are aware of what documentation can be accepted as proof of right to work in the UK from 1 July 2021, and more importantly, which documentation cannot be accepted. This will assist an organisation in ensuring that their right to work checks remain compliant with UK law and, most importantly, protect the organisation from being fined up to £20,000 per illegal worker should any illegal working take place. HR and on-boarding staff should also be clear on the implementation date.
We can provide training and advice on all aspects of the new rules, along with reviewing and auditing your organisation’s existing policies and procedures when onboarding staff, along with your associated recruitment documentation including your contracts and offer letters.
If you would like to discuss any aspect of the draft guidance or you have any concerns regarding practical issues around the changes on 1 July 2021, then we are here to help. Please contact our Business Immigration Team.
