Post-Brexit right to work checks | What employers must know

Last Updated: 18th June 2021

UPDATE: The return of physical right to work checks has been postponed from 21st June 2021 to 1st September 2021.

In addition to the return of physical right to work checks on 1st September 2021, many of our clients have asked us about how Brexit will affect right to work checks.

From 1st July 2021, how you perform right to work checks on EU nationals will change.

In this guide, we look to address the issues employers will face in light of these upcoming changes.

Why is a right to work check important?

A right to work check establishes whether your employee or candidate has the right to work in the UK. This type of check should be an essential part of your recruitment process.

You, the employer, have a legal obligation to perform a right to work check, regardless of the candidate’s race, nationality, or ethnicity.

Even if it can be assumed that the candidate has the right to work in the UK, you must perform these checks.

If you dismiss your obligations, then you may be subject to a maximum civil fine of £20,000 per individual and/or a criminal sanction of an unlimited fine or imprisonment of five years.

At the moment, you can continue to use EU passports and ID cards for right to work checks until 30th June 2021. Following this date, EU workers will need to show you valid ‘leave to remain’.

What changes are being made to right to work checks on 1st September 2021?

From 1st September 2021, temporary COVID-19 adjustments that were made to right to work checks will come to an end.

This means you will need to see physical documents when performing right to work checks. Scanned documents will no longer be accepted.

After 1st September, you can use the online right to work checking service for EU nationals, if they have a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme or Points Based System.

British citizens will not be able to use this online service. As a result, they will have to send their passports (or other ID documents) in advance of their employment; or arrange to meet their employer. Of course, you must note that employees will be reluctant to send personal ID documents (even by courier or recorded delivery).

If my existing EU staff members have not applied for settled or pre-settled status under the EU Settlement Scheme by 30th June 2021, what are the consequences?

As an employer, you will not face a civil penalty. However, your employee will face a break in employment until the issue is resolved. In addition, your employee will have to leave the UK to re-apply from overseas (except under certain circumstances). If you do not have a sponsor licence, then you can expect this break period to last a few weeks.

We talk more about EU and EEA staff members in our article about the EU Settlement Scheme (EUSS) here.

How should I, and other employers, prepare for Post-Brexit right to work checks?

You must ensure all those responsible for right to work checks at your organisation are both fully trained and aware of any legislative changes that occur. In particular:

You should note that EU nationals who are hired after 1st July 2021 will need to hold appropriate leave to enter or remain in the UK.

You should also ensure your right to work check process prevents discrimination. Therefore, your process should be applied to every new starter, regardless of their nationality.

Regarding a sponsor licence, it is recommended that you obtain one for all non-UK and non-Irish hires as soon as possible. This will prevent delays in hiring talent from overseas from 1st July 2021.

If you are hiring new starters at scale, and your industry demands other background checks are taken out (before and whilst they are employed with you), then you should consider obtaining a robust background check/screening software.

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