Post-Brexit right to work checks for EEA nationals

Published 1 July 2021

Following the end of Free Movement, a grace period was introduced on 1 January 2021 which gave EU, EEA and Swiss nationals (‘EEA nationals’) as well as their family members extra time to secure immigration status under the EU Settlement Scheme. The grace period ended on 30 June 2021 and all EEA nationals and their family members now require immigration status to live and work in the UK with the exception of Irish nationals.

Right to work checks for EEA nationals employed from 1 July 2021

From 1 July 2021, EEA passports and national ID cards alone will not be sufficient evidence of an EEA national’s right to work in the UK. As such, employers carrying out a right to work checks will need to obtain additional evidence in order to establish a statutory excuse against illegal working.

Online checking service

In most cases, the additional evidence will be in the form of pre-settled or settled status which is held digitally. As EEA nationals will not be able to provide a physical document, employers will need to use the Home Office’s online checking service to determine whether an EEA national has the right to work in the UK. When using the checking service, an employer will need to use the employer portal of the service to establish the statutory excuse. If the employee portal is used when conducting the right to work check this will not establish a statutory excuse.

The Home Office guidance on carrying out right to work checks changes regularly so it is necessary for employers to check the latest guidance and any relevant legislation to ensure they are following the correct procedure to establish the statutory excuse.

Alternative ways to check right to work

Where an EEA national cannot prove their status using the Home Office’s online checking service, employers must give every opportunity to allow the individual to demonstrate their right to work through other means. There may be many reasons why an EEA national cannot evidence their status using the online checking service and in order to avoid discrimination, employers must be flexible in considering alternative evidence of right to work. In particular, EEA nationals who fall into any of the following categories will likely need to provide alternative evidence of right to work:

• Frontier Workers;
• A Service Provider of Switzerland;
• EEA nationals with outstanding applications under the EU Settlement Scheme;
• EEA nationals with Indefinite Leave to Enter or Remain;
• Irish nationals; and
• EEA nationals with a visa under the Points Based System.

Right to work checks for EEA nationals employed before the end of the grace period

During the grace period, up to and including 30 June 2021, an employer cannot insist that an EEA citizen proves their immigration status using the Home Office online checking service. During this time, EEA citizens are able to continue proving their right to work by providing their EEA passport or national ID card.   

There is no requirement to undertake retrospective checks on EEA citizens employed before the grace period ended. If retrospective checks are undertaken, an employer has a duty to carry these out in a non-discriminatory manner. If an employer subsequently becomes aware, or has reasonable cause to believe, that any individual has ceased to have the right to work lawfully in the UK, the statutory excuse will no longer apply.

Where an employer does identify an EEA national who does not have the right to work, provided their employment began before 30 June 2021, their contract of employment may not need to be terminated. A new transitional measure has been introduced which gives employers the flexibility to retain an EEA employee while they make an application. In these circumstances an employer should:

1. Advise the employee they must make an application to the EU Settlement Scheme within 28 days and provide the employer with a Certificate of Application (‘CoA’).
2. After receipt of the CoA, the employer should contact the Home Office Employer Checking Service (‘ECS’) to confirm an application has been made.
3. Where an application has been made, the ECS will give a Positive Verification Notice (‘PVN’) and a statutory excuse will be established against a civil penalty for 6 months.
4. If the PVN will expire before a decision is made on the application, a follow up check with the ECS must be made to maintain the statutory excuse.
5. Where the follow up check confirms the application is pending, a PVN will be granted for a further 6 months. If the follow-up check confirms the application has been finally determined and refused, then the employer will not be issued with a PVN and steps should be taken to cease the individual's employment.
6. Maintain an accurate record of all checks and actions taken in relation to this measure in the same way records are kept when conducting a standard right to work check.

Before taking advantage of this measure, employers must fully consider the Home Office guidance and ensure the transitional period can be relied upon, the prescribed process has been followed and the correct records of checks performed have been maintained 

This transitional period does not apply to EEA nationals employed after 30 June 2021. After 1 July 2021, an EEA national who has not made an application under the EU Settlement Scheme by the deadline and cannot provide evidence of alternative immigration status in the UK should not be employed.

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