20 Oct Checking migrants’ right to work post Brexit

The UK left the EU on 31 January 2020. Free movement between the UK and the EU will come to an end on 31 December 2020.

From 1 January 2021, the UK will introduce a new points-based immigration system that treats EU and non-EU nationals equally. The new system will also replace the current Tier 2 General Scheme. This means that EU citizens will need to meet specific requirements in order to work/study/reside in the UK.

UK employers have to apply for a sponsor licence in order to recruit either EU or non-EU nationals from 1 January 2021.

Both EU and non-EU citizens will also need to pass the relevant checks, for example, UK companies have to check a prospective worker’s immigration status and in particular that he/she is allowed to work in the UK before they start their employment with the company/Tier2 A-rated sponsor.

Employing EU, EEA and Swiss nationals

EU citizens can still use their passport or National Identity Card until 30 June 2021.

In addition, EU nationals and their family members can apply for a Pre- Settled status or Settled status under the EU Settlement Scheme (EUSS) prior to 30 June 2021 if they have been habitually resident in the UK before 31 December 2020.

The employer will need to check that:

• The documents are genuine, original and unchanged and belong to the person whom they wish to hire;
• The dates for the migrant’s right to work in the UK have not expired;
• Photos are the same across all documents and look like the applicant;
• Dates of birth are the same across all documents;
• The migrant has permission to do the type of work that the employer is offering (including any limit on the number of hours they can work);
• Students have to provide evidence of their study and vacation times;
• If two documents give different names, the individual has to provide the supporting documents showing why they are different, such as a marriage certificate or divorce decree.

UK employers are also required to take a copy of the original documents (some concessions have been introduced when employee/employers are not allowed to meet due to Covid19).

However, when copying the documents, it is important to:

1. Make a copy that cannot be changed, for example, a photocopy;
2. Make sure the copy is clear enough to read;
3. For passports, copy any page with the expiry date and migrant’s details (for instance, nationality, date of birth and photograph) including endorsements, for example, a work visa;
4. Copy both sides of biometric residence permits and residence cards (biometric format);
5. The employer must make a complete copy of all other documents;
6. Keep copies during the individual’s employment and for 2 years after they stop working for the company;
7. Record the date the check was made.

Moreover, the employer must check that a job applicant is allowed to work in the UK either:

• Check the applicant’s original documents;
• Check the migrant’s right to work online, if they provide their share code.

Checking the applicant’s original documents

Due to COVID-19 pandemic, the right to work checks have been temporarily adjusted to make it easier for employers to carry them out.

As of 30 March 2020, the following temporary changes were introduced:

• Checks can now be carried out over video calls;
• Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather originals;
• Employers should use the Employer Checking Service (https://www.gov.uk/employee-immigration-employment-status) if a prospective or existing employee cannot provide any of the accepted documents.

Employers can also use the following link to check the applicant’s right to work online: https://www.gov.uk/view-right-to-work. They will need the migrant’s date of birth and the right to work share code.

If the job applicant or existing worker cannot show their documents

Employers must contact the Home Office Employer Checking Service (https://www.gov.uk/employee-immigration-employment-status) if any of the following apply:

• Migrants cannot show their documents because of an outstanding appeal, review or application with the Home Office;
• They have an Application Registration Card;
• They have a Certificate of Application that is less than 6 months old;
• They are a Commonwealth citizen who started living in the UK before 1988.

If the individual has a right to work, the Employer Checking Service will send the employer a ‘Positive Verification Notice’. This provides the employer with a statutory excuse for 6 months from the date in the notice.

Once the COVID-19 measures have ended

The current COVID-19 measures are only temporary and once they were to end, employers should carry out the retrospective checks on existing employees who:

• Started working for you during these measures;
• Required a follow-up right to work check during these measures.

Employers should make a note on the employee’s file that the prescribed right to work check was undertaken due to COVID-19 and that the original documents have now been seen on the relevant date.

Please note that the retrospective check must be carried out as soon as possible and within 8 weeks of the COVID-19 measures ending.

Please also note that the employer could face a civil penalty if they recruit an illegal worker and have not carried out a correct right to work check. For more detailed information, please refer to the guidance below:

https://www.gov.uk/government/collections/right-to-work-checks-employer-guidance

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Contact Our Immigration Team

For expert advice regarding any aspect of the sponsor licence application and Tier 2 General application, please contact our team on 0203 384 3075.