Further guidance on right to work checks for EU nationals from January 2021

The Home Office has released additional guidance for employers on employing EU, EEA and Swiss citizens in the U.K. after the end of the Brexit transition period.

Key Points:
• The way employers are required to check a job applicant’s right to work will be unchanged until June 30, 2021. Until this date, EU, EEA and Swiss citizens can prove their right to work as they do now, using a passport or national identity card or the online right to work checking service.
• The guidance reiterates that employers have a duty not to discriminate against EU, EEA or Swiss citizens. Employers cannot require applicants to show their status under the EU Settlement Scheme until after June 30, 2021.
• Irish citizens will continue to prove their right to work in the U.K. as they do now. Irish citizens are permitted to work in the U.K. by virtue of the Common Travel Area (“CTA”) between the U.K. and Ireland.
• EU, EEA and Swiss citizens and their family members who are residing in the U.K. by Dec. 31 are reminded they have until the June 30, 2021, to apply under the EU Settlement Scheme (“EUSS”) to continue living in the U.K. after this date.
• EU, EEA and Swiss citizens and their family members arriving in the U.K. from Jan. 1, will be required to make an application under the new immigration system to obtain a working visa in advance of moving to the U.K. This will require a job offer from an approved sponsor.
Background: The U.K. left the European Union on Jan. 31, triggering a transition period ending on Dec. 31. Freedom of movement will end Jan. 1, and the U.K. will have a new immigration system, applicable to both European and non-Europeans alike.

While EU, EEA and Swiss citizens already living in the U.K. by the end of the transition period are able to secure their status in the U.K. using the EUSS (with a deadline of June 30, 2021), those arriving from Jan. 1 will have to apply under the new immigration system.

BAL Analysis: The new guidance is welcome, as it provides further clarity on a range of right to work obligations for businesses employing European nationals from Jan. 1, 2021. However, it has also raised questions about what documentation can and cannot be requested, particularly for new European hires from Jan. 1, 2021.

It is clear that any EU, EEA or Swiss national who is already employed in the U.K. by Dec. 31 will not require a retrospective right to work check. While these individuals are nonetheless required to apply under the EUSS by June 30, 2021, employers cannot require them to demonstrate they have made the application.

For new hires of any European nationals already residing in the U.K., while these individuals may have already applied under the EUSS (and are required to do so by June 30, 2021), employers cannot require them to show any status granted under the EUSS until after June 30, 2021.

It remains to be seen if any retrospective checks on holding a status under the EUSS will be required after June 30, 2021, in particular for those individuals hired between Jan. 1and June 30, 2021. Further guidance is expected to be released by the Home Office toward the end of the ‘grace period’ ending on June 30, 2021.

In summary:
• Before June 30, 2021, there is essentially no change to the right to work process for employers hiring EU, EEA and Swiss nationals. If the individual is resident in the U.K. a simple right to work check can be carried out using the passport.
• No retrospective checks are required on existing employees.
• Signposting can be given to employees regarding how to apply under the EUSS, but evidence cannot be requested that this has been done or permission obtained.
• If the EU, EEA or Swiss national is not resident in the U.K. before Dec. 31, a formal application is required under the new immigration system.
• After June 30, 2021, all EU, EEA and Swiss national new hires will be required to show their permission to work in the U.K., either by holding a status under the EUSS or by first making an application under the new system.
• Employers cannot discriminate and refuse to employ an EU, EEA or Swiss national on the basis they have not yet obtained a status under the EUSS until after June 30, 2021. Employers must continue to follow the current right to work guidance and rely on a statutory defense against any illegal employment since retrospective checks are not required at this time and there is no change in right to work processes until after June 30, 2021.

Azevedo Sette Advogados