Important changes in right to work checks and employing EU nationals

The combined effects of Brexit and Covid-19 are making this a particularly busy time for employers who either already employ EU nationals or who are simply running their routine right-to-work checks. You may have seen national media coverage for the strain now being put on the Home Office’s system for EU nationals to apply for Settled Status, as well as what might be in store for EU nationals who did not make the necessary application in time.

Right to work checks

Employers and businesses should be aware that UK Visas and Immigration (UKVI) has issued updated guidance on how to carry out right-to-work checks following the end of grace period on 30 June 2021. The new checks came into force on 1 July 2021 and employers should read the new guidance carefully, as it contains a number of changes.

The list of acceptable documents to prove a right to work in the UK has changed significantly, as employers will no longer be able to rely on EEA Passports or EEA ID cards as acceptable documents to prove a right to work in the UK. It is still possible for Irish nationals to provide their passport as evidence of right to work in the UK.

In light of the UK government extending its deadline for easing lockdown restrictions and social distancing measures, UK Visa and Immigration (UKVI) also announced that the temporary Covid-19-adjusted right-to-work checks will now end on 5 April 2022.

What if I missed the deadline to apply under the EU settlement scheme?

There will undoubtedly be a cohort of EU nationals who were unable to submit applications by the 30 June 2021 deadline. UKVI guidance states that it is possible to make an application after the deadline, provided the applicant can show reasonable grounds for not submitting in time.

What is deemed as ‘reasonable grounds’ will be assessed on a case-by-case basis, but some examples include:

• physical or mental incapacity
• serious medical condition
• victim of modern slavery
• abusive or controlling relationship/situation
• other compelling practical or compassionate reasons.

EEA nationals who failed to apply by the deadline will be issued a 28-day notice period to apply under the EUSS if encountered by immigration officials before potential enforcement action is taken. It is important to note that the ’28-day notice’ is not an extension of the 30 June 2021 deadline.

If businesses are now looking to hire EU nationals, and those EU nationals have not applied to the EUSS, they will not be able to provide evidence of right to work as per Annex A and B of the newly issued guidance on right to work checks. In this instance you should not employ the EU national until such time they can provide the necessary evidence. If the EU national is unsuccessful in making the application, they will be subject to UK Immigration Rules and will be required to apply under a different category.