UK: Brexit and COVID-19 – Right to Work Checks

For employees recruited after 1 July 2021, UK employers will no longer be able to accept only an EEA or Swiss passport or relevant National ID Card as evidence of a lawful right to work in the UK. Instead, they will need to see proof of immigration status which will include but not necessarily be limited to eligibility under the EU Settlement Scheme or the UK’s new Points Based System (PBS) immigration framework. On a separate note, temporary changes to the rules governing the employer’s duty to check and document a worker’s right to work in the UK have been in force from 20 March 2021 due to the pandemic. These temporary changes will remain in force until 31 August 2021.  

Brexit: The UK left the EU on 31 January 2020 and entered into a transition period which ended on 31 December 2020.  During the transition period, free movement continued between the UK and the EEA and Switzerland.  Those EEA and Swiss citizens, and where relevant eligible non-EEA / Swiss dependent family members, residing in the UK by 31 December 2020 could apply for immigration status under the EU Settlement Scheme to enable them to continue to live and work in the UK. Applications for immigration status under the Scheme needed to be submitted by 30 June 2021, albeit there are provisions facilitating applications post that date if specific criteria are met. Applicants could apply for Settled Status (if they had been in the UK for five continuous years immediately preceding the application or in certain circumstances for a historic continuous five year period) or Pre-Settled Status (if they had been in the UK for less than five years). As is the case for non-EEA / Swiss nationals, EEA / Swiss nationals commencing employment / work in the UK after 1 January 2021 will need to meet the requirements of the new PBS, rolled out in full for applications submitted from January 1 2021 or other UK Immigration categories.  

COVID-19: Employers have a statutory duty to prevent illegal working and must carry out certain checks to ensure employees have the right to live and work in the UK.  Temporary changes, in place since 30 March 2020, have facilitated right to work checks to be carried out by prospective employees sending scanned copies of compliant ID documents via email, followed by a confirmatory ID video call.

As in pre COVID times, Employers would also have the right where eligible and with the employee’s consent, to conduct right to work checks online utilising the Home Office portal.

From 1 September 2021, employers must once again either:

• Check the applicant’s original documents in the employee’s physical presence and retain certified copies, or
• As above, check the applicant’s right to work online via the Home Office’s portal, if they have given the employer their share code.

Key Action Points for Human Resources and In-house Counsel 

Employers should review existing right to work policies and procedures ensuring they meet the new requirements for employees of all nationalities commencing employment post-30 June 2021. Separately, post-31 August 2021 the COVID concessions will end requiring employers to reinstate previous requirements to check and document an employee’s right to work.