The UK formally left the European Union at 11pm on 31 December 2020. Since then, all businesses have been getting to grips with the resulting changes to immigration and ‘right to work’ requirements.
There is a lot of information to digest. Additionally, as is perhaps to be expected, there is also a fair amount of misinformation and ‘myths’ which can make it difficult for employers to understand the new rules and the options available to them in terms of recruiting non-UK nationals and carrying out compliant right to work checks.
In this blog, we try and dispel some of the most common myths!
- EU nationals have the right to work in the UK for six months post-Brexit even if they haven’t applied for settled or pre-settled status.
This is a myth, which could give rise to illegal working penalties for the business.
Since 1 January 2021, EU nationals entering the UK have been subject to the UK’s full visa requirements, in the same way as non-EU nationals.
EU nationals are allowed to enter the UK as “visitors” for up to six months without obtaining a visa in advance, but this does not give them the right to work in the UK. If you permit an EU national to work in your business without the proper immigration permission, you risk penalties for illegal working such as a fine of up to £20,000 per illegal worker or even, in some cases, potential criminal liability of up to five years in prison and an unlimited fine.
To add to the confusion, however, before 30 June 2021, employers were able to rely on an EU passport or identity card as evidence of an individual’s right to work in the UK in the same way that they had done pre-Brexit. There was no requirement for businesses to make any further checks on individual’s immigration status. This ended on 1 July 2021. This means, in theory, that there could be individuals who have been working illegally in the UK since the start of the year but who haven’t been identified because their employer was legally permitted to accept their EU passport or ID card as proof of their right to work before 1 July 2021.
- Employers immediately need to dismiss any EU national who cannot show proof of Settled/Pre-Settled Status.
This is a myth and could give rise to employment law claims against the business.
The Home Office has confirmed that employers do not need to carry out retrospective checks on any individuals whose right to work documentation was checked on or before 30 June 2021, provided a compliant right to work check was carried out at the time.
Some employers may, however, wish to carry out retrospective checks, given the potential financial penalties and reputational risk of employing illegal workers. If you adopt this approach, then you should consider carrying out right to work checks on all your workforce (instead of just checking the ID of individuals who are believed to be non-UK nationals) to avoid allegations of discrimination.
The Home Office Guidance states that where an employer becomes aware that it is employing someone who has failed to apply for the EU Settlement Scheme by the 30 June 2021 deadline, they will not be required to immediately terminate the employment of that individual. Instead, they can go through a specific procedure that potentially allows them to continue employing the individual in question and avoid any illegal working penalties. However, these special rules will only be in force until 31 December 2021. (This is another reason why some employers are conducting retrospective right to work checks during this period.) If you dismiss an individual without taking advantage of this procedure, there is a real risk that they would be able to bring employment law claims against you.
Of course, any individuals who commence work on or after 1 July 2021 will have to demonstrate their right to work in line with the new statutory requirements. This might be by demonstrating they have obtained Settled/Pre-Settled Status, that they hold a Skilled Worker visa, a Frontier Worker permit, or some other immigration permission which means they are permitted to undertake the work in question. If they are unable to do so, they should not be employed.
- An employer can obtain a “statutory excuse” by obtaining copies of a person’s ID and/or using a third party company to check their ID.
This is another myth which, after 1 September 2021, will leave the business exposed to potential illegal working fines of up to £20,000 per illegal worker.
As impractical as it can be, the only way for an employer to obtain a statutory excuse is by checking a person’s right to work online (which is available in limited cases) or by seeing their original ID (not a copy) and, in both cases, checking the resemblance of the photograph against the individual. (Although there is currently a time-limited exception to this – see below). This must be done in the presence of the individual, or via a video link such as Teams, but in either case where you are relying on hard copy documents, you must be in physical possession of the ID at the time of the check.
Employers should also be aware that third party organisations which offer an ID verification service are generally simply checking a person’s identity, for example by searching for their name on the electoral role or other official records – they are not checking whether the person has the right to work in the UK. Even if they do claim to do this, however, an employer cannot delegate their right to work checks – an employer cannot establish a statutory excuse by relying on a check undertaken by another party.
Between 30 March 2020 and 31 August 2021, the right to work checks have been relaxed under the COVID-19 concession. This allows employers to carry out right to work checks over video calls without seeing physical ID documents – instead, employees and job applicants can send scanned documents or a photograph of their documents using email or a mobile app, rather than sending the originals. This means that any right to work check carried out in this period could be done using copy documents. Importantly, however, businesses must still meet the other requirements for a valid right to work check, including carrying out the check before someone starts work. Employers must also document that the check has been undertaken under the covid-concession.
Various bodies are lobbying for the concession to be made permanent, given the practical difficulty of checking a worker’s ID in person, but unless the Home Office permanently changes its approach, employers will have to revert to carrying out “in person” right to work checks from 1 September 2021. Employers who fail to carry out the checks properly will potentially be exposed to civil penalties (up to £20,000 per illegal worker), criminal penalties (unlimited fines and up to five years in prison), naming and shaming, reputational damage and the loss of any sponsor licence.
- Employers can help their employees or job applicants with their visa applications.
This is a myth, which potentially exposes individuals working in the business to criminal prosecution.
Employers need to be aware that in many cases it is a criminal offence to provide immigration advice without having the necessary qualifications, so whilst businesses can point their employee and job applicants towards the government guidance or send them links to relevant websites, actually advising them, interpreting the guidance or assisting them with their visa application could, depending on the circumstances, potentially land the business and individual HR advisers/managers in very hot water.
The Brabners Business Immigration team has experience in supporting recruitment businesses, their candidates and clients in all of these areas. Please get in touch with us if you have any concerns or would like to discuss these issues further.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
