New immigration rules – what do they mean for your Brexit Right to Work checks?
As of 11pm on 31st December 2020, free movement for European nationals has come to an end and the UK government has implemented new policies regarding post-Brexit Right to Work compliance in the UK. But what does that really mean for your Right to Work check processes?
The first thing to note is that Brexit has not changed the fact that Right to Work checks remain a legal requirement for all new employees, no matter what their nationality. You must check all employees consistently and thoroughly to avoid discrimination and ensure they have the appropriate right to work status in the UK.
The main change is that from 1st January 2021, European nationals are being categorised differently, depending on when they first arrive in the UK and whether they are eligible for the EU Settlement Scheme. In summary:
Before 1st January arrival:
If they arrived before 1st January, EU/EEA nationals need to apply under the EU Settlement Scheme in order to continue living and working in the UK long term. They can apply online and should do so by 30th June 2021. After that date, if they haven’t applied, they will no longer have the right to live and work in the UK.
When applying for the EU Settlement Scheme, an individual will be granted settled status if they have five years’ continuous residence in the UK, or pre-settled status if it’s less than five years. The applicant can then generate a ‘Share Code’ using the government website which they can give you to check using the Home Office portal.
After 1st January arrival:
Any European national who comes to live and work in the UK for the first time after 1st January 2021, will be treated in the same way as non-European nationals under the UK’s immigration rules. That means they can’t apply under the Settlement Scheme and will be subject to the new points-based system or will need to be sponsored under the new Skilled Worker category.
What happens between now and June 2021?
A ‘grace period’ has been created until 30th June 2021, during which current Right to Work guidance remains in place and your RtW check processes may change very little.
Although these new categories exist from 1st January, when you’re recruiting new staff during the grace period, you don’t need to distinguish between an EU/EEA national that was resident in the UK before 1st January and one that wasn’t. The guidance says that an employee doesn’t need to inform you whether they have applied to the EU Settlement Scheme or the outcome of their application and you shouldn’t actually check whether an employee has applied or not. You’re not expected to keep any records of who has or hasn’t done so.
Until 30th June, EU/EEA nationals can choose to prove their Right to Work status by presenting a relevant ID document, such as an EU ID card or passport, or may decide to use an online share code as mentioned above. You can’t insist that they use the online service or discriminate against those who wish to carry on using the ID documents.
What happens on 1st July 2021?
After 30th June, applicants will no longer be able to rely on their EU passport or identity card to prove their right to work in the UK and will instead have to provide an appropriate visa or provide a share code to prove their status under the EU Settlement Scheme.
As long as you’ve carried out thorough Right to Work checks, current guidance says that you don’t need to carry out retrospective checks on EEA nationals who start work before 1st July.
The Home Office hasn’t yet published full details on how to conduct Right to Work checks on EEA nationals after 30 June 2021 but have promised an update before then – so keep an eye on the latest Brexit guidance.
What changes are TrustID making to their services?
One benefit of using an online Right to Work service such as ours is that we update our systems and fully train our support team to reflect ongoing changes to immigration rules. For example, our system is already integrated to the online service which allows you to check employee’s share code. From 30th June 2021, to reflect the end of the ‘grace period’, we also plan to update our Right to Work service and our processes in line with the latest guidance.
Of course, this blog is not intended to be legal advice so if you have specific questions regarding Brexit or your staff please refer to Government guidance or speak to a specialist immigration lawyer. If you’d like to find out how Right to Work check software could help your organisation remain compliant, please get in touch.
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