New Home Office guidance on post-Brexit right to work checks also confirms that UK employers will not be required to distinguish before 1 January 2021 between EU, EEA and Swiss citizens and their family members who were resident in the UK before the UK leaves the EU, or those who became resident afterwards.
New guidance on right to work checks will be produced ahead of 1 January 2021, reflecting the entry into force of the UK government's planned single skilled-based immigration system which will not distinguish between EU and non-EU nationals. Employers will not, however, be required to retrospectively check the immigration status of any EU, EEA or Swiss employees or their family members who start work before 1 January 2021, and will not be responsible for checking that employees leave the UK when their immigration status expires.
UK employers are required to conduct right to work checks on all prospective employees to comply with the rules on illegal working and avoiding unlawful discrimination. They must also retain clear records of workers' rights to work in the UK in either electronic form or hard copy, for the duration of the employment and for a period of two years afterwards.
EU, EEA and Swiss citizens will be able to prove their right to work in the UK until 1 January 2021 by showing a passport or national identity card to their employer. Alternatively, they can choose to allow their employer to use the Home Office's online right to work check service, provided that they have been granted settled or pre-settled status under the EU Settlement Scheme. Employers cannot compel employees to use the online service.
The EU Settlement Scheme will be available to EU, EEA and Swiss citizens living in the UK by 31 December 2020 if the UK parliament approves the withdrawal agreement entered into by the UK government and EU. Those individuals will have until 30 June 2021 to apply for settled status. The EU Settlement Scheme will only be available to EU, EEA and Swiss citizens living in the UK before the UK leaves the EU if there is no formal withdrawal agreement in place. Applications will have to be made by 31 December 2020 in a 'no deal' scenario.
A new three-year European temporary leave to remain immigration status will be created under a 'no deal' scenario, giving newly-arrived migrants who arrive in the UK from the EU, EEA or Switzerland after Brexit but before 31 December 2020 the opportunity to apply for time-limited permission to live, work and study in the UK. Individuals who wish to stay in the UK for longer than the three-year period provided for under the new status will then have to apply for an immigration status under the planned new skills-based immigration system from 2021.
Non-EU, EEA or Swiss family members of EU, EEA or Swiss nationals will also be eligible to apply for European temporary leave to remain status.
The new guidance does not apply to Irish citizens. Irish citizens will continue to have the right to work in the UK after Brexit. They will also be able to prove their right to work as they do now, for example by using their passport.
Immigration law expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com, said that while the Home Office had clearly tried to make the right to work checking process as straightforward for employers as possible in the event of a no-deal Brexit, this approach "may not work in the best interest of the employee or the employer" where the employee is an EU citizen whose immigration status has ceased to be straightforward. Employers would, for example, still need to be aware of conflicting legal obligations - particularly those imposed by section 21 of the 2006 Immigration Asylum Nationality Act ('2006 Act').
"An employer risks committing a criminal offence under this legislation by employing a person who requires but does not have permission to work if the employer knows or has reasonable cause to believe this to be the case," Smith said. "This becomes relevant in a no-deal scenario, where an EU citizen who was not previously resident arrives in the UK after exit date or at any time until 31 December 2020. That individual will be subject to a 90-day visa free exemption on arrival before needing to apply for the three-year European temporary leave to remain visa."
"The maintained simple right to work check provisions do not impose any need for an employer to check that the employee has complied with the 90-day limit or has made or will make a three-year European temporary leave to remain visa application. The Home Office has not confirmed that there is to be an exemption for employers from risk of prosecution under the 2006 Act if there is a breach by the employee. We would hope that a sensible approach would be taken in practice, but we would hope that clear guidance could be provided to employers," he said.
Smith added that the simplified right to work checks proposed would not protect either the employee or the employer in circumstances where the employee did not comply with the European temporary leave to remain visa application process.
"Even where an employee complies there will be a need for the employer to be aware that the ability to retain that employee after the expiry of the three-year visa may be limited," he said. "Employers do not know what options, if any, will be available, as the new immigration system to apply from 2021 is yet to be confirmed."
"Employers need to be aware that what appears to be helpful guidance on right to work checks may in fact lead to problems in the future. It will therefore be important to review the recruitment process. Employers may want to ensure that they can confirm a maintained right to work compliance beyond the government requirements. It will also be essential to be aware of the limitations of the European temporary leave to remain visa and the inability at this stage to be able to advise on the ability to employ any worker beyond its expiry. Employers will need to await further details of the future immigration system to be in place from 1 January 2021 before being in a position to do so," he said.