How Brexit will affect Right to Work checks

UPDATE: Whilst this article provides an overall guide, we recommend reading this more up to date article.

UK employers are wondering how Brexit will affect right to work checks.

One significant change from Brexit is freedom of movement between the United Kingdom and European Union. This came to end on 31st December 2020. Now, the UK’s points-based immigration system is now in force.

So how will Brexit affect right to work checks?

Firstly, the premise of right to work checks remains unchanged. UK employers should continue to conduct these, in accordance with the rules on unlawful discrimination and illegal working.

To ensure lawful hiring, compliance, and the well-being of their staff, here are several changes and facts UK employers must take into account.

Irish citizens are unaffected

Irish citizens will continue to have the right to work in the UK. Also, the way in which they prove their right to work will not change. This comes under the Common Travel Agreement (CTA).

New Visas

As part of the points-based immigration system, EU citizens moving to the UK will require a visa in advance. In addition to visitor and student visas, the three main visas are:

Skilled worker visa

This is for EU citizens who can prove they have a job offer in the UK from an approved employer sponsor. Other requirements will include skill, strong English language skills, and a salary that meets the relevant threshold.

Global talent scheme visa

This aims to provide a ‘fast-tracked entry’ to highly skilled scientists and researchers without a job offer.

Intra-Company Transfer visa

This route is for established workers who are being transferred by the business they work for to do a skilled role in the UK.

You can find more information on the new visas here.

What is the points-based immigration system in UK?

Anyone coming to work in the UK must meet specific requirements, which will score them specific points.

For workers with a job offer in the UK, they have pass two tests. In test 1, an individual has to score 50 points. In test 2, they have to score 20 points.

In short, a worker has to score 70 points in total. These tests look like the following:

Test 1

Characteristic Points
Employed by an approved sponsor 20
Skilled job 20
English language 10

Test 2

Characteristic Points
Salary £20,480 (minimum) – £23,039 0
Salary £23,040 (minimum) – £25,599 10
Salary £25,600 or above 20
Job is a shortage occupation 20
PhD in relevant subject 10
PhD in STEM subject 20
Applicant is a new entrant 20

What is the EU settlement scheme (EUSS)?

Employers should be made aware of the EU settlement scheme (EUSS), as questions may occur from candidates and current employees. In short, the EU Settlement Scheme provides a basis for resident EEA and Swiss citizens and their family members to apply for the UK immigration status; which they will require to remain in the UK. There are two schemes under the EUSS: The Pre-Settled Scheme and The Settled Scheme:

  1. The Pre-Settled Scheme (or Limited Leave to Remain) grants you the right to work in the UK. It does not give access to welfare benefits by itself, as you will still need to show a “right to reside”
  2. The Settled Scheme (or Indefinite Leave to Remain), grants you the right to work, live, access healthcare and welfare

Both schemes are available to EU, EEA, Swiss citizens, and their family members who have started living in the UK by 31st December 2020 (and without a serious criminal record). From 1st January 2021, workers will be required to obtain an appropriate visa.

For more information and to apply for this scheme, click here

The online application for settled status is not as straightforward as it seems

The Home Office states that the application process for pre-settled or settled status is quick and simple. However, some applicants have found they have been given pre-settled status, despite meeting the settled status criteria. For employers this can be a tricky issue, as this element of the process is out of their hands. Rather than inform the employee to accept pre-settled status, they should advise them to seek legal advice. This link to the Citizens Advice Bureau provides contact information for those who are having problems with their settled status decision.

Right to work checks for EU/EEA/Swiss citizens working in the UK

Employers will not need to repeat checks on existing employees until after 30th June 2021. After this date, employers will have to check if EU/EAA/Swiss citizens employed by them have the right to work. Employers should inform employees of this category that they should apply for settlement status under the EU Settlement Scheme before 30th June 2021.

Right to work checks for new employees from EU/EEA/Swiss citizens

Newly hired employees will need to provide the relevant visa or provide evidence of settled or pre-settled status.

EU passports and ID cards. No longer acceptable evidence of right to work?

To date, the home office has not provided information on what the right to work check requirements will look like from 1st July 2021. However, based on the emphasis on sharing codes from the EU settlement scheme (or a visa), it can be assumed at this point that EU passports and ID will no longer be accepted. Employers should keep an eye on the Home Office website to keep abreast of upcoming changes.

Biometric residence permits (BRPs) have changed

With all the changes happening, it has been somewhat under-publicised and overlooked that Biometric residence permits (BRPs) have changed this year. Employers should be made aware of this and by following this link, you can see what BRPs should look like.

A sponsorship licence should be obtained now

For employers who seek talent from EEA or Switzerland, it is strongly advised to obtain a sponsor license. In addition, this licence should be integrated into the recruitment process, to ensure compliance from a candidate’s initial application to the job’s start date.

More information on obtaining a licence can be found here.

What can employers do now?

It is evident that employers and candidates alike must act.

For employers, you can act now by:

  • Ensuring employees who arrive after 1st January 2021 have the correct visa as part of right to work checks
  • Asking for proof of pre-settled or settled status after 30th June 2021
  • Reminding all EU, EEA or Swiss national (and their families) to apply for the EU Settlement Scheme before 30th June 2021
  • Continuing current right to work checks until 30th June 2021
  • Obtaining a sponsorship licence (if applicable)

Brexit, like vetting and right to work checks, is a challenging and complex process to get your head around. To keep abreast of the effect Brexit is having on employment background checks, be sure to bookmark our blog for updates.

This article has provided some top areas for consideration regarding right to work checks and Brexit. The information should be treated as guidance. For further information, visit the Home Office website.

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