When European Free Movement between the UK and the EU ended on 31 December 2020 EU, EEA and Swiss (‘EEA’) citizens and their family members became subject to UK immigration control. EEA citizens who arrived in the UK before 31 December 2020, and their family members, will have the right to live and work in the UK until the end of the Grace Period on 30 June 2021.

The statutory instrument ‘The Citizen’s Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020’ implemented the Grace Period with the purpose of protecting the rights of EEA citizens lawfully resident in the UK before Free Movement ended. This allows all eligible EEA citizens to live and work in the UK during the Grace Period while they apply for permission to stay under the EU Settlement Scheme. However, not all EEA citizens can benefit from this Grace Period or the EU settlement Scheme.

Where an EEA citizen arrives in the UK after 31 December 2020 with the intention to work, and where they are not eligible to apply under the EU Settlement Scheme, their rights will not be protected by the Grace Period and they will not have a right to work in the UK unless they have permission to work in the UK under an alternative route of the Immigration Rules.

The differing immigration status of EEA citizens, dependent on their travel to the UK, and an employer’s duty to act in a non-discriminatory manner has led to confusion for employers and concerns surrounding the employment of illegal workers and their potentially liability for serious criminal and civil sanctions. The Home Office have maintained that during the Grace Period, right to work checks on all EEA citizens should be performed on the basis of their nationality and not their immigration status to avoid discrimination. Recent Home Office guidance published on 17 March 2021 states:

“Right to work checks for EEA nationals will not change until after 30 June 2021. Until then, EEA nationals can use their passport or national identity card to evidence their right to work. You are not expected to differentiate between EEA nationals who arrived before the end of the transition period (31 December 2020) and those arriving after in the grace period from 1 January to 30 June 2021”

Further, as the Home Office are guiding employers to perform right to work checks on EEA nationals during the grace period on the basis of nationality, in order to avoid discrimination, their guidance also states:

“…employers cannot refuse to accept a passport or ID card from an EEA citizen or insist they use the Home Office’s online checking service to prove their right to work during this period.”

It is clear from the Home Office’s new guidance that their position is that as long as an initial right to work check of an EEA citizen was undertaken in line with the Home Office guidance and the relevant right to work legislation, an employer will maintain a continuous statutory excuse against a civil penalty in the event of illegal working. This is only as long as an employer does not know or does not have reasonable cause to believe the EEA citizen does not have a right to work in the UK.

While the Home Office’s position is likely to protect an employer from claims of discrimination, the guidance still raises concerns surrounding the criminal and civil offence of employing illegal workers. A little comfort could also be taken from a fact sheet published by the Home Office in February 2021 which states:

“The criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the Right to Work Scheme. It is not intended for employers who have employed EEA citizens in good faith during the grace period and have completed a right to work check in the prescribed manner.”

However, it is conceivable that knowledge or reasonable belief could be implied into an employer’s conduct following the recruitment of an EEA citizen. This would risk an employer becoming liable for the unintended employment of illegal workers if they have not taken satisfactory steps to determine an EEA citizen’s immigration status, and the serious consequences that could follow including revocation of a sponsorship licence. While the new guidance does clarify the Home Office’s position towards undertaking right to work checks on EEA citizens, concerns still remain for employers who are balancing the risk of committing an offence against their duty to act in a non-discriminatory manner whenever they hire an EEA citizen and the subsequent stability of their work force. Employers should remain aware of these concerns until further guidance is published by the Home Office.

The Home Office right to work guidance can be found here.