Written by Katie Ogilvy

19th April 2021

When employing someone in the UK, you must ensure they can prove their right to work in the country.

Conducting a Right to Work Check is essentially a three-step process:

  1. You must obtain the employee’s original identity documents
  2. Check the documents are valid with the employee present
  3. Copy the documents, record the date of the check and keep the copy securely and in accordance with data protection (GDPR) principles

Currently, due to the pandemic, RTW checks have been allowed to be carried out slightly differently – including receiving documents digitally and making checks on a video call. If someone is unable to provide evidence of their right to work, you must use the Home Office Employer Checking Service. This may give you a ‘Positive Verification Notice’ which means you can rely on this as proof of their right to work for 6 months.

At present, a new starter from the EEA or Switzerland can provide their passport or identity card  to prove their right to work, but under new rules that came in as a result of Brexit, these documents will no longer be accepted after 30th June 2021.

From 1st July 2021, anyone who relied on a Swiss or EU passport or identity card to evidence their right to work will need to confirm either pre settled or settled status or show proof of a visa that allows them to remain.

Although there is no requirement for you to carry out a retrospective right to work check for existing EEA and Swiss national employees, we would suggest that you do an audit of your records before 30th June to understand who will be affected by the changes.

Whilst you can’t force employees to apply for settled status, you can remind employees of the changes due to Brexit, and encourage them to apply by explaining the process, as by 1st July 2021 they will have to be able to evidence that they still have the right to work in the UK.

Anyone who has obtained pre settled or settled status will be able to evidence this by providing a share code for the online right to work checking service that can be found at https://right-to-work.service.gov.uk/view/share-code. Settled status is usually given to those who have lived in the UK for 5 or more years and pre settled usually to those who have been resident for less than 5 years. Pre settled status is granted for 5 years and cannot be extended. If an employee doesn’t meet the requirements for settled status, they will need to apply for a visa before the end of the 5 years or risk losing their right to work in the UK. Additionally, anyone with pre-settled status who lives outside the UK for two consecutive years will lose their pre-settled status and need to apply for a visa if they wish to return.

EEA and Swiss nationals who can evidence that they were resident in the UK before the end of December 2020 have until 30th June to apply for pre settled or settled status. Applicants can apply online from outside of the UK as long as they can evidence that they were resident in the UK within the last 6 months.

However, any EEA or Swiss nationals who entered the UK from 1st January 2021 onwards and cannot evidence the appropriate previous residence will not be able to apply and will instead need to obtain a visa to allow them to continue to work in the UK after 30th June.

Right to Work Checks for new recruits before 30th June

If you plan to recruit before the end of June, some candidates you interview may have already obtained settlement status and provide you with the details to check. If not, an individual can show their passport as a valid right to work, but their employment  may have to be terminated in July if they don’t have the right to remain.

It’ worth noting that you do not need to ask for confirmation of settled or pre-settled status before 30th June. However, if you have new starters between 1st  January and 30th June 2021, how will you know if the employee was already in the UK before January and whether or not they require a visa? Government guidance on Right to Work Checks states that employers are “not expected to differentiate” between those who arrived before the end of the Brexit transition period and those who arrive between January and 30th June 2021.

Right to Work Checks for new recruits after 30th June

The EU passport is only valid to demonstrate right to work up until 30th June.

If you employ any EU citizens after the 30th June 2021, that do not have a settled or pre-settled status, you will be hiring people who are in the UK unlawfully and therefore, breaking the law.

You will be able to check an employee’s digital status under the EU Settlement Scheme – they can generate a share code for you to check.

If you wish to employ someone after 30th June who is not yet a resident in the UK, you will need to have a sponsorship licence. You as an employer will apply and pay for a business licence and then pay per person for sponsorship certificates. This licence is based on proof that you can’t fill the job in the UK.

It can take up to 8 weeks to get a sponsorship licence but there is no guarantee that your application will be successful. Even if successful, the sponsorship certificate does not automatically mean that the prospective employee will be given a visa to come to the UK.

As many employers now recognise that remote working can suit their businesses, you may be considering candidates who live abroad. This can present challenges if your business does not have a presence in the foreign location or is not used to having people working there. Read more in our blog “Are your staff asking about working from home abroad? Here’s what you need to think about”.

Ultimately, as an employer you must balance avoiding unlawful discrimination while trying to prevent illegal working. Carrying out right to work to checks on all new employees in the same way is the safest way to make sure that your business is not being left open to the risk of potential discrimination claims or fines.

Our New Starter Toolkit provides a suite of documents and a checklist to support the process of hiring a new starter, including details on Right to Work Checks. Please get in touch with the Reality HR team at info@realityhr.co.uk for more information or if you have any questions about Right to Work.