Fall from ‘grace’: Post-Brexit Right to Work checks from 1 July 2021

02 Jul 2021

Midnight on 30th June 2021 marked one of the landmark moments in the implementation of Brexit. The so called “grace period”, effectively preserving the residence rights of EEA and Swiss citizens that were living in the UK prior to 11pm on 31 December 2020, has ended. With it ended the extra period in which EEA/Swiss citizens were expected to apply for replacement status under the EU Settlement Scheme (EUSS).

When it comes to employing individuals from the EEA/Switzerland, this is the point at which real and fundamental change occurs for UK employers. During the grace period, right to work checks (protecting the employer from a civil penalty in the event that it later transpires the individual is not entitled to carry out the role in the UK) could still be undertaken by reference to a prospective EEA/Swiss employee’s passport. Employers were under no obligation to enquire as to whether or not the employee had obtained status under the EUSS, nor indeed were they entitled to require the individual to do so.

Overnight, from 30th June to 1st July, the position has changed. Employers were given less than two weeks to digest the guidance on right to work checks published by the Home Office on 18th June.

Deceptively simple

The position can seem deceptively simple. Existing employees (i.e. those employed and for whom an appropriate right to work check has been conducted prior to 1 July 2021) do not need to be re-checked. For new hires joining from 1 July onwards, the employer must check and verify that the EEA/Swiss citizen has appropriate evidence of their right to work in the UK (be it status under the EUSS, or a visa entitling them to carry out the work in question). If the individual has made a valid application under the EUSS, but it’s not yet been decided, the employer can establish a temporary right to work check by obtaining evidence of the application having been made (e.g. certificate of application) and verifying this using the online “Employer Checking Service”.

Other, more complex, scenarios will inevitably arise.

Late (but otherwise valid) applications to the EUSS

The 30th June deadline to submit an application is not absolute. 

Late applications may be accepted by the Home Office where there are “reasonable grounds for the failure to respect the deadline”. At law, there is a strong argument to say that a late application will serve to revive an individual’s residence rights on the basis that they have a pending application (even one submitted late and relying on “reasonable grounds”).   

The Home Office draws no distinction between late applicants and non-applicants though, and no protections are afforded to those with late/pending applications. 

Nowhere in the recently published right to work checks guidance does it say that someone with a pending late application can be hired.

Existing/new hires with no EUSS status or pending application

Somewhat confusingly, just as the 6 month grace period falls away, an alternative one kicks in for those who have no EUSS status or pending application by 30 June 2021. 

The new 28 day grace period is effectively of a ‘stay of execution’ (in the immigration enforcement/deportation sense) for those who are found to be residing in the UK without EUSS status or a pending valid application.

The relevant section of the EUSS guidance issued for Home Office staff says:

Where it appears to the officer that this is the case, they will provide the person with a written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice. The officer will not consider whether, if the person is within the scope of the EU Settlement Scheme, there are reasonable grounds for their failure to meet the deadline applicable to them under it; you will consider this if the person then makes an application under the scheme.

Seemingly, if the individual then fails to make a valid application within the period stipulated and/or the application they make ultimately fails, they will face immigration enforcement action.

What does this mean for employers?

For existing employees engaged before 1 July and for whom a valid right to work check was undertaken before employment commenced, no re-check is required. However, if (post 30th June) an employer becomes aware that an employee has failed to make an EUSS application it cannot stand idly by. In what is effectively a further “grace period” arrangement applicable only until 31 December 2021, employers are expected to tell the individual that they must make a valid application to the EUSS within 28 days and provide the employer with a Certificate of Application. The guidance states that if the Certificate of Application is not provided within the 28 day period, the employer must take steps to terminate the employment in accordance with right to work check legislation.

So this is effectively a mandated grace period to be given by employers to any relevant employee, instead of taking immediate steps towards terminating the employment on the grounds that they appear to be working illegally.

For new hires commencing employment from 1 July onwards employers are told that if an EEA/Swiss citizen has not applied by the 30th June deadline and has no alternative immigration status entitling them to do the work in question, they should not be employed. But the guidance is silent on whether those referred to above with a pending/late (but otherwise valid) EUSS application can be employed. 

We don’t yet know whether an Employer Checking Service check made by reference to evidence of a late application to the EUSS would give rise to a positive notification from the Home Office. Even if it might, many employers would be reluctant to engage an employee in such circumstances for fear of either relying on a “false” notification or having to terminate the individual's employment if and when the clear possibility of a failed application subsequently arises.

It is important to remember that employers are not under a duty to make enquiries with staff as to their position vis a vis the EUSS. However, over time, several employers will become privy to information about EEA/Swiss employees that force them to confront complex scenarios such as those described here. Employers should act now to review and understand the changes and associated new guidance and to build an appropriate policy that can be applied, consistently, as and when necessary.

Can we help?

Every year we help a diverse range of employers (from international charities to SMEs) to successfully navigate business immigration and illegal working issues. Brexit and the new points-based immigration system have made this support more vital than ever before. From providing updates and upskilling staff through in-house training, to conducting sponsor licence compliance and right to work check audits and reviewing or providing new policies and procedures, we help employers to stay on top of this fast moving and complex area.

Contact the Business Immigration Team today to find out how we can help you and your business. 

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