The UK formally left the European Union at 23:00 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 and recruitment businesses 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!
- It’s easy for a recruitment business to get a sponsor licence.
This is part myth and part truth, depending on what recruitment services you are actually providing.
If an EU national wants to live and work in the UK post-Brexit (and hasn’t obtained settled or pre-settled status under the EU Settlement Scheme), the main visa option available to them is to obtain a Skilled Worker visa. For employees to obtain this visa, they need (amongst other things) a job offer from a licenced sponsor, i.e an organisation which holds a Sponsor Licence which has been granted by the Home Office. For recruitment businesses placing permanent candidates, this means that their client/hirer will need to hold a Sponsor Licence.
Recruitment businesses wanting to employ EU or other non-UK national employees in their own businesses will have to apply for, and retain, a sponsor licence in order to use this visa option. This means making sure they understand and are compliant with all of the specific rules and requirements associated with being a registered sponsor.
Recruitment businesses supplying temporary workers will find the position trickier. In most cases, they will only be eligible to apply for a Sponsor Licence to sponsor migrant workers directly employed in connection with the running of their business (such as their own employed recruitment consultants).
This is because, in most cases, it is not permitted for an employment business or umbrella company to obtain a Sponsor Licence in respect of a worker whom they will be supplying to work for a third party (i.e. an end client).
The one exception is if the employment business is operating a “Contractor Service” model (i.e providing a full outsourced service rather than simply supplying temporary labour).
Whilst at first glance, this appears to offer a solution, in practice, the application of this exception is likely to be limited.
Firstly, this would require many employment businesses to fundamentally alter their business models. For example, it is an entirely different proposition to supply temporary warehouse operatives than to take over management of a client’s warehouse.
Secondly, simply supplying contracted labour will not meet the sponsorship requirements by itself. This exception is only satisfied where the service on offer meets strict requirements including being time limited (i.e. a service/project with a specific end date) and after which time the project must have been completed or the service provided no longer operated by them or anyone else.
Thirdly, the sponsor (the employment business or umbrella company) must always retain full responsibility for the duties, functions, outcomes and outputs of the job that the worker is sponsored to do. This is unlikely to be realistic or feasible for most employment business or umbrellas supplying temporary workers.
Undeniably, this means that supplying EU nationals on a temporary basis has become more difficult.
However, there are other options available and we are working with clients in these areas to find solutions to potential problems.
- 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 recruitment 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 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.
- Recruitment businesses immediately need to dismiss/terminate the engagement of 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 recruitment 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 and recruitment businesses may, however, wish to carry out retrospective checks, given the potential financial penalties and reputational risk of employing illegal workers. If businesses adopt this approach, then they should consider carrying out right to work checks on all their 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 the 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 the recruitment business dismisses an individual without taking advantage of this procedure, there is a real risk that they would be able to bring employment law claims against it.
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 employment business or umbrella company 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 recruitment 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 original ID (not a copy) and 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 the employer must be in physical possession of the ID at the time of the check.
Employers and recruitment businesses 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, workers 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. They must also document that the check has been undertaken under the covid-concession.
Various industry 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.
- Employment agencies can help candidates with their visa applications.
This is a myth, which potentially exposes individuals working in employment businesses to criminal prosecution.
Agencies and employers need to be aware that it is a criminal offence to provide immigration advice without having the necessary qualifications, so whilst businesses can point candidates towards the Government guidance or send them links to relevant websites, actually advising them, interpreting the Guidance or assisting them with their application could potentially land the business in very hot water.
Of course, employment agencies can certainly offer added value to their clients by understanding the visa requirements and working with regulated advisers such as ourselves to meet the requirements.
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 article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter
