Immigration alert: New right to work check and Covid absences rules for EU citizens

16 June 2021

There are two updates on EU citizens for you to be aware of on right to work checks and on absences due to Covid:

1. Right to work checks on EU citizens from 1 July 2021

Employers need to be aware of different right to work check rules for EU (and EEA and Swiss) citizens from 1 July 2021.

The current position

Our previous blog and alert set out the current position. Essentially, for right to work checks between 1 January 2021 and 30 June 2021 employers are able to rely on checking an EU citizen’s passport or national identity card. Employers can also check online an EU citizen’s EU Settlement Scheme or other digital immigration status but cannot insist on it. Until 1 July 2021 employers are not required to differentiate between those EU citizens who arrived before or from 1 January 2021. 
 
Any EU citizen arriving for the first time from 1 January 2021 will need to apply for permission to work under the new immigration system.

From 1 July 2021, employers are not required to carry out retrospective right to work checks.   

Changes from 1 July 2021

We have been waiting for the new guidance on right to work checks from 1 July 2021, which was released last week in the form of a new code of practice. The main employer guidance has not yet been updated but presumably will be on or before 1 July 2021. 
 
The key changes for right to work checks on EU citizens from 1 July 2021 include:

  • Pre-employment and follow-up checks. The new code of practice should be applied to all right to work checks on or after 1 July 2021. This includes pre-employment checks and follow-up checks.
     
  • Documents to be checked. Where employers are checking the right to work of EU citizens from 1 July 2021, in the vast majority of cases they will be checking online the employee’s digital immigration status under the EU Settlement Scheme or new immigration system. However, the following changes have also been made to the list of compliant documents which can sometimes be used for right to work checks on EU citizens:​
     
    • List A (where there is no expiry date on the employee’s permission). As expected given the changes, EU passports no longer feature on this list. The exception is where the employee has an Irish passport - as Irish nationals do not require prior permission to work in the UK.
       
    • List B Group 1 (where there is an expiry date on the employee’s permission). A frontier worker permit is acceptable. For more information on frontier worker permits see our previous blog.
       
    • List B Group 2 (where there is an expiry date on the employee’s permission and the statutory excuse only lasts for 6 months). Where an employee has an application pending with the Home Office and a right to work check is required, sometimes the employer checking service must be used. There is an update to List B Group 2 - where an employee has a pending EU Settlement Scheme application submitted on or before 30 June 2021, the employer can rely on their certificate of application together with a Positive Verification Notice from the employer checking service.

For more information on pre-employment and follow-up online, physical document (manual) and employer checking service right to work checks, please see our FAQs on right to work checks: what employers need to know.

 

2. EU citizens with pre-settled status who are absent from the UK due to Covid

EU citizens who apply to the EU Settlement Scheme for pre-settled status need to apply for settled status after 5 years in the UK. Pre-settled status is non-extendable and so it is important that the residence requirements are met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker
 
Those with pre-settled status should not be absent for more than 6 months in any 12 month period. A single period of absence of up to 12 months is permitted for an “important” reason which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training or an overseas posting.  
 
Until recently, where an absence was over 6 months due to Covid it was only deemed an important reason if the EU citizen was ill and self-isolating or they were sharing a house with someone ill with coronavirus.
 
The guidance was amended last week to be much more flexible on Covid related absences. 
 
In welcome news for EU citizens, among other changes the new guidance includes that you can have been absent from the UK for example because “there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas.”
 
It also goes on to say “this means you can rely on any coronavirus related reason (including where you chose to leave or remain outside the UK because of the pandemic) as being an ‘important reason’ permitting an absence of up to 12 months. In these circumstances, you will not have broken your continuous qualifying period of residence.”

 

If you have any queries in relation to the above change or any other immigration matter, please contact a member of the immigration team.

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