Will the UK's post-Brexit immigration system plans be derailed by COVID-19?
We know that EU citizens resident in the UK before 11pm on 31 December 2020 are eligible to apply under the EU Settlement Scheme before the 30 June 2021 deadline. Are we also clear about what will happen with EU citizens who arrive from 1 January to work? To an increasing extent we are and if you review the government guidance on this topic it is helpful and confirms that employers who want to employ EU citizens from 1 January will require a sponsor licence in order to directly sponsor EU citizens, as they have been doing already for non-EU citizens.
This is clear and hopefully those employers who don’t have a sponsor licence are making arrangements to obtain one. Irish citizens will continue to have a right to work in the UK as they do now and will not require sponsorship. Our FAQs on the UK’s new immigration system have more details.
What is the right to work check grace period?
What isn’t particularly clear is the requirement for employers to check EU citizens have the right to work in the UK from 1 January. The Home Office’s guidance includes that during a grace period to 30 June 2021, employers can continue to solely check an EU citizen’s passport or national ID card in the same way as usual.
Such a check must always be carried out before the employment commences and if carried out properly will give the employer a statutory excuse against potential illegal employment for the duration of the employment. Where a compliant right to work check is not carried out before the employment starts, employers can be subject to a civil penalty or even criminal prosecution.
The Home Office guidance also includes that “You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.”
Employers cannot force their existing EU citizen workforce to submit EU Settlement Scheme applications but can encourage them to do so and provide information and support to them on how to apply. Employers will rightly be keen to avoid any suggestion they are discriminating against EU citizens because of their nationality.
Should employers do follow up retrospective checks?
As above, it would ordinarily be expected that checking and copying the EU passport or national ID card would provide a statutory excuse for the duration of the employment and further Home Office right to work check guidance mentions that “You will not need to make retrospective checks for existing employees.”
As a result many employers will understandably feel that any follow up checks after 30 June 2021 are unnecessary and may find that EU citizens are reluctant to provide any further information or documentation to evidence their right to work.
What’s the problem?
As mentioned above, the central issue is that only EU citizens resident in the UK on or before 31 December 2020 would, as a matter of law, have a right to work in the UK by virtue of their EU nationality and can apply under the EU Settlement Scheme by the 30 June 2021 deadline. In the meantime, their ability to live and work in the UK until 30 June 2021 will be protected by legislation. EU citizens arriving on or after 1 January 2021 would have no such right unless they apply under the new immigration system, for example as a Skilled Worker.
But how do employers know the difference? For example, if a Spanish national is recruited by a UK company in February 2021, how will the employer know, on the face of the Spanish passport, whether the individual has, as a matter of law, a right to work?
On the one hand the employer will have a degree of comfort from the Home Office right to work check grace period guidance – which is clear that such a check is permissible and that retrospective follow up checks are not required.
However, on the other hand we hope that more detailed Home Office guidance will be released in due course on the right to work grace period checks because we anticipate a number of issues could be encountered at the start of next year, including in relation to:
So what is best practice for the grace period right to work checks?
As above, we would hope that new Home Office guidance will clarify the position in this area. Here are a few suggested dos and don’ts though:
As and when the Home Office releases further guidance on this issue, we will keep you updated. If you have any queries on the above or any other matter, please contact a member of the immigration team or employment team. We will shortly be releasing further commentary on immigration and employment issues surrounding the new immigration system.
Marcia Longdon is a partner in our business immigration team. She has specialised in immigration, nationality and European law for over 20 years. She has a collaborative approach with the Home Office and government officials and is often invited to participate in consultations and round table discussions on changes to UK and European immigration.
Niki Southern is a Partner in our Employment team. She often acts in complex cases requiring her to navigate overlapping issues such as equal pay, discrimination, harassment, sickness absence, performance and misconduct. She has particular experience of representing employers and employees in the higher education, retail, media, professional and financial sectors.
Tim Richards is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the knowledge management and ‘know-how’ development for the immigration team.
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