Immigration and Employment issues in the UK's new Immigration System

The post-Brexit right to work check grace period for EU citizens – is it really that helpful?

1 October 2020

So, we have three months to go before the transition period ends and we leave Europe for good.

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.

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:

  • Knowledge. With any right to work check, the employer cannot ‘blindly’ copy a document when it is known that the individual does not actually have the right to work.  Where an employer knows or has reasonable cause to believe there is no right to work, in the worst case scenario they can be the subject of criminal prosecution as well as a civil penalty.  For example, if there is email correspondence on the file clearly indicating that the employer knows the EU citizen recruit arrived in the UK for the first time after 1 January, merely copying the passport or national ID card will not provide a defence against prosecution or a statutory excuse against a civil penalty.
  • Avoiding future issues for the employee.  An EU citizen arriving in the UK after 1 January without permission to work in the UK under the new immigration system, is likely to inadvertently suffer a detriment where their employer has relied on the right to work grace period guidance.  For example, if questioned in the future on returning to the UK, changing employer after the grace period or even seeking to apply for indefinite leave to remain after 5 years in the UK, they may well encounter difficulties.  
  • Employer needing to retract an offer of employment.  It is commonly the case, whilst not advisable, that employers carryout right to work checks on the first day of employment.  In that scenario, if the employer only then suddenly realises there is a right to work issue, problems could ensue in terms of retracting the offer of employment/terminating the employment.  This kind of issue is more likely to occur in respect of the grace period right to work checks if the employer does not properly assess the employee’s particular circumstances before the first day and assumes that checking and copying the EU passport or ID card will suffice.  Employers should consider in advance whether an EU Settlement Scheme or Skilled Worker application is applicable. It is important that all candidates/recruits are asked at the same stage of the recruitment process for evidence of their right to work.  Ideally this would be earlier in the recruitment process, say at a second round interview.  Whilst practically speaking that is challenging for employers, they should at least seek to check the right to work as early as possible and before the first day when the employment has already commenced. 

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:

  • Most importantly, if you know that the EU citizen recruit needs permission to work under the immigration system, don’t employ them on the basis of their EU passport or national ID card alone.
  • Don’t ask them for further documents beyond their passport or national ID card but do consider asking the employee when they first arrived in the UK to decipher if this was before or after the end of the Brexit transition period.  Whilst employers need to be careful in relation to avoiding any suggestion of discrimination in the recruitment process, they also need to be mindful of their legitimate interests to avoid employing someone illegally.
  • Do provide them with information on the EU Settlement Scheme and if they are ineligible the need to apply under the new post-Brexit immigration system for an appropriate work visa, such as a Skilled Worker visa.
  • Do ask all candidates for evidence of their right to work at the same time in a recruitment process, preferably earlier rather than later to avoid a ‘first morning’ difficulty of the EU citizen requiring permission to work under the new immigration system.

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.

About the Authors

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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