The deadline to apply to the EU Settlement Scheme (EUSS) was yesterday, 30 June 2021. From today’s date, any worker from the European Economic Area or Switzerland (EU Workers) must either be able to show that they have settled or pre-settled status under the EUSS, or have an alternative lawful immigration status to live and work in the UK. Irish citizens can continue to use their passports or passport card to prove their right to work in the UK.
How can I check the right to work for EU workers after 1 July 2021?
Right to work checks will continue in the usual way. You will be able to check original documents (remember: temporary COVID-adjusted procedures remain until 31 August 2021) or check an EU worker’s right to work online at www.gov.uk/view-right-to-work. In order to do the latter, you will need the job applicant’s date of birth and a right to work share code, which will be provided to you by the prospective employee.
Do I need to undertake retrospective checks on EU workers to make sure they have the right to work?
You are required to undertake initial right to work checks on all employees before you employ them. Remember, undertaking checks on day one/ the induction of their employment is too late, and won’t give you a statutory excuse against negligently employing an illegal worker. After the initial check has been undertaken, you are only required to undertake a follow up check where the employee’s permission to remain in the UK is time limited.
There is no requirement to undertake a retrospective check on EU workers, provided employers undertook initial checks in line with prescribed Home Office guidance. Where initial checks were conducted correctly, employers will continue to have a statutory excuse against liability for civil penalties. However, employers will invariably wish to consider their potential liability in this regard. Section 21 of the Immigration, Asylum and National Act 2006 (as amended) makes it a criminal offence to know or have reasonable knowledge that you are employing an illegal worker. The potential sanctions if found guilty of this criminal offence are an unlimited fine and up to five years’ imprisonment, although the Home Office have said that criminal prosecution will be reserved for the most serious of situations. There are, however, also potential civil penalties for employers found to have been employing someone illegally where they have not carried out the prescribed right to work checks. Potential sanctions under the civil penalty regime include a fine of up to £20,000 per illegal worker, closure of a business, disqualification of a director and not being able to sponsor migrant workers in the future. As such, it’s an important thing to get right.
Recent government guidance (updated 18 June 2021) has confirmed that employers can choose to carry out retrospective checks on EU workers, in order to maintain the “stability of their workforce”. Where such checks are undertaken, these must be done in a non-discriminatory manner.
If employers know or suspect that an EU worker did not apply or was not eligible to apply to the EUSS, then there is a risk that they are employing an illegal worker. The employer will need to undertake a balancing act of avoiding employing an illegal worker and equally avoiding discrimination by requesting certain individuals to provide evidence of their right to work. This position is not satisfactory, and it may be an area where we see further guidance from the government in due course.
What if eligible employees don’t apply to the EUSS before 30 June 2021?
The Home Office have confirmed that they will accept late applications to the EUSS for individuals who have “good reason” (as assessed by the Home Office) for applying late. Any late application may however impact upon that EU worker’s right to remain in the UK and there is therefore a risk that you will be employing an illegal worker if you continue to employ an individual under these circumstances.
The Home Office have recently announced transitional measures for employers that may be followed until 31 December 2021. These measures are intended to cover the circumstances where an employer identifies one of its employees has not applied to the EUSS by 30 June 2021, despite being eligible to do so. In order to benefit from this the employee must have been employed by an employer, in the UK, prior to 30 June 2021. The requirements are:
- The employer must notify the individual that they must apply to the EUSS within 28 days and the individual must then apply and provide their employer with a Certificate of Application (CoA) to prove this. If no application is made, the employer must termination the employee’s employment;
- Once the CoA is provided, the employer must access the Home Office Employer Checking Service (ECS) to confirm that the employee has applied. Where an application has been made, a Positive Verification Notice (PVN) will be generated and this will provide the employer with a statutory excuse against a civil penalty for a period of six months. During this time, the employee can remain in the employer’s employment;
- Before the PVN expires, the employer must do follow up checks to maintain a statutory excuse against negligently employing an illegal worker. If during the follow up checks an application is still pending, a further PVN will be issued for six months. Where the application has been refused, the employee’s employed must be terminated.
The transitional measures will not apply where an employee was not eligible to apply to the EUSS.
How can I employ EU workers?
EU workers may have their own lawful immigration status, including as a family member or as a student. If not, it is likely that EU workers will seek to be sponsored by their prospective employer, as a skilled worker. In order to be able to sponsor suitably skilled workers, employers must apply to the Home Office to become a licensed sponsor.
How can we help?
We have extensive experience in supporting organisations to navigate through the complex immigration rules and we’d love to help you to consider the impact these changes will have and support you with what you need to do now. We can also help you to apply to become a sponsor of skilled workers (including intra company transfers).
Sponsor application package
Our fixed fee sponsor application package includes:
• Advising you on the initial considerations and process in relation to your application to become a sponsor, including assistance to identify key personnel within your organisation to comply with sponsor licence management duties;
• Reviewing your draft application to become a sponsor, and providing support and guidance on the application up to the point you submit this to UK Visas and
Immigration (UKVI) for initial consideration;
• Guidance and assistance on collating appropriate supporting documentation for your application, and a comprehensive document verification and certification service to ensure compliance with immigration rules;
• Audit of your relevant HR, recruitment and onboarding systems and procedures to ensure they meet the requirements of a sponsor. We can also prepare an action plan to assist you to rectify any issues identified during our audit to support your application to become a sponsor;
• Advice on your obligations as a sponsor, including record keeping, reporting and compliance and co-operation with UKVI; and
• Drafting a covering letter to support your application to become a sponsor, clarifying any relevant details, background and explaining corporate structure (where
Please get in touch if you’d like more information about this.