Changes to Right to Work checks since 1 July

Before we get into the details of the changes, its worth highlighting that Irish citizens can continue to use just their passports to prove their right to work in the UK thanks to the Common Travel Area (CTA) arrangements.

Ensuring that your existing employees continue to have the right to work

A very frequent question that I have been receiving from clients over the past couple of months is whether retrospective right to work checks are now required for EU/EEA citizens hired on or before 30 June 2021.

Simply put, there is no mandatory requirement for employers to conduct retrospective on EU/EEA citizens who began their employment with the business on or before 30 June 2021. As long as the initial right to work checks were carried out correctly prior to employment commencing, the employer will maintain a continuous statutory excuse against liability for a civil penalty in the event that they are found to have employed an illegal worker.

Nevertheless, plenty of employers will want to carry out retrospective checks in order to ensure the stability of their workforce and to make sure that no one is working illegally in the UK. As the saying goes, better the devil you know! The Home Office are happy for employers to carry out retrospective checks, however it is important to highlight that care should be taken to ensure that these checks

are handled in a non-discriminatory manner, as arbitrarily asking certain employees to provide this information without requesting if from others could leave you open to potential claims of discrimination.

What if an employee has missed the EUSS deadline, can they still apply?

Late applications under the EUSS are permitted where there are ‘reasonable grounds’ for missing the deadline, however the definition of ‘reasonable grounds’ is exceptionally limited. The Home Office considers, among other things, ‘reasonable grounds’ as:

• Where the applicant has a serious medical condition or underwent significant medical treatment in the months before, or around the time of, the deadline;
• Where the applicant is a victim of modern slavery or is in an abusive relationship;
• Other compelling practical or compassionate reasons, such as having no internet access, limited computer literacy, limited English language skills or being unable to access support due to Covid-19 restrictions.

Simply forgetting the deadline or refusing to apply because you do not believe it is necessary are not likely to be considered ‘reasonable grounds’.

The Home Office has published non-exhaustive caseworker guidance setting out the wide range circumstances which would constitute reasonable grounds. This guidance mentions Covid-19 as a reasonable ground for delay therefore it is hoped that the Home Office will take a sensible and pragmatic approach when assessing late applications.

What happens if you find that an existing EU/EEA employee has not applied under the EUSS?

Thanks to a transitional measure which has been introduced by the Home Office, employers do not need to end employment at the time they identify an employee without status, as long as the EU/EEA citizen commenced employment on or before 30 June 2021. This transitional measure will remain in place until 31 December 2021 in order to give employers some flexibility over the next few months, however from 1 January 2022 employers should commence dismissal proceedings if it is found that an EU/EEA employee did not apply under the EUSS in time.

If an employer discovers that an EU/EEA employee has not applied under the EUSS in time and they were required to do so, the employers should advise the employee to make an application under the EUSS within 28 days of them discovering the situation and provide the employer with the certificate of application (CoA) once it has been issued by the Home Office. Employers can then use the CoA to conduct a right to work check via the Home Office’s Employer Checking Service, which will provide them with a statutory excuse against liability for a civil penalty for 6 months.

If the employee does not submit their application within 28 days then the employer should commence dismissal proceedings.

In theory the employee should receive a decision on their application within 6 months, however if the application is still pending when the 6 month period comes to an end a follow-up check must then be conducted in order to maintain the statutory excuse.

If the employee’s application is approved then a new right to work check will need to be completed in order to evidence their status under the EUSS, and the employee can continue working as normal. If the application is refused then the employer should commence dismissal proceedings as soon as they are aware that the application has been refused, pending any rights to appeal the decision.

This transitional measure will remain in place until 31 December 2021 in order to give employers some flexibility over the next few months, however from 1 January 2022 if it is found that an EU/EEA employee did not apply under the EUSS in time then employers should commence dismissal proceedings immediately. It is yet to be seen if the Home Office will extend this transitional measure into 2022, it’s likely that this will depend on how many late applications the Home Office receives over the next few months so at the moment we will just need to wait and see.

What happens if a new hire since 1 July applied to the EUSS before the deadline but has not received a decision?

While more than 6 million EUSS applications have been received as of 30 June, current data shows that approximately 400,000 applications are still awaiting a decision. For anyone who is awaiting a decision on their application after 30 June the Home Office has confirmed that they will issue a Certificate of Application (CoA), which can then be used to evidence the applicant’s right to work in the UK.

Providing that the applicant submitted their application by 30 June, employers should not automatically preclude someone from starting a role just because they have not got their status under the EUSS. Where a prospective new hire has a pending application, employers should still conduct the right to work check prior to employment commencing as usual. In these cases, they should use the applicant’s CoA to submit a request to the Home Office’s Employer Checking Service. If the applicant has the right to work in the UK the Employer Checking Service will issue a Positive Verification Notice (PVN), which will provide the employer with a statutory excuse for 6 months. As mentioned above, in theory the individual should receive a decision on their application within 6 months, however if the application is still pending when the 6 month period comes to an end a follow-up check must then be conducted in order to maintain the statutory excuse.

In some cases, individuals may not have received a CoA yet. In these cases they should have received an automated acknowledgment email that contains wording on how to evidence their right to work until they are issued with a CoA.

Key takeaways

As with many other areas of HR compliance, being pro-active is the key to ensuring that you have a stable workforce and that you are not unwittingly employing an illegal worker. Employers should take the following steps to be compliant and avoid any unpleasant surprises:

• Conduct internal audits: do all employees have the right to live and work in the UK? Do you have a system in place to monitor visa expiry dates?
• Reviewing recruitment processes: are these non-discriminatory? Are you making fair, balanced assessments based on the merits of the application?
• Are right-to-work checks conducted at the same time for all roles? All checks should be completed before employment commences, second interview stage is an ideal time to carry out the check.
• Is the recruitment team aware of the changes to the right-to-work checks process following Brexit? Do they receive regular training on upcoming changes?
• Request a mock immigration compliance audit: The Home Office has now resumed compliance visits, therefore employers should ensure that they have systems in place to check and monitor the immigration status of their workforce – our team can conduct a mock audit for you.

Our team of immigration specialists can help with all of the above points, including conducting in-house training for your teams and conducting mock Home Office audits. If you would like to discuss how we can help you out in more detail please reach out to Chris Harber, our Head of Immigration, at [email protected].