As an employer you should carry out a ‘right to work’ check when you hire new staff in order to make sure they have the legal right to work in the UK.

Now that the UK has left the EU and the Brexit transition period is over the immigration rules have changed for EU, EEA, and Swiss nationals. It’s important that both employers and employees understand how this affects them.

To help you get to grips with everything, our guide summarises some of the key changes for employers to know.

What is the EU Settlement Scheme?

The EU Settlement Scheme launched on 30th March 2020 to allow European citizens to continue living in the UK after Brexit. Applications are open up until 30th June 2021.

Who should apply to the EU Settlement Scheme?

The scheme is open to citizens of the EU, EEA (which includes the EU plus Iceland, Liechtenstein and Norway), and Switzerland. They’ll need to apply before 30th June 2021, even if:

• They’re currently married to a British citizen, and they’re from the EU, EEA, or are Swiss.
• They were born in the UK, but they aren’t a British citizen.

When is an application to the EU Settlement Scheme not required?

Not everybody needs to the apply the EU Settlement Scheme. EU citizens don’t need to apply if:

• They have been granted indefinite leave to enter or to remain in the UK (as an employer, you may still need to check that their immigration status permits work).
• They are Irish citizens (although family members from outside either the UK or Ireland still must apply).

It’s free to make an application, and support is available from the government both in-person and over the phone. In most cases the applicant should already have been living in the UK before 1st January 2021 in order to apply.

Where an individual’s application is successful, they’ll either have settled or pre-settled status. Those who have resided in the UK for a continuous period of five years or longer will usually be given settled status. Certain short periods away from the UK won’t be counted.

Those who have lived in the UK for less than five years and apply successfully will be issued pre-settled status. Once a further five years has passed, this can be converted to settled status, though the application must be made before their leave expires.

What is the new points-based system for skilled workers?

Now that free movement with the EU has ended, the UK’s updated points-based system came into force on the 1st December 2020, and sets out to treat EU citizens in the same way as non-EU migrants.

These changes mean that employers will usually need a sponsor licence to employ non-UK citizens if they don’t have permission under the EU Settlement Scheme.

Business visits to the UK: Visa or no visa?

This one’s a bit trickier to get your head around. EU/EEA/Swiss nationals can visit the UK without a visa for a maximum stay of six months. But (and it’s a big but), think ‘holidays’, not ‘business’.

EU/EEA/Swiss nationals travelling to the UK for business reasons without a visa may well find the Home Office refuses them entry.

For those who know their business visit is likely to be a month or longer within a six to twelve month period, a safe way forward is to obtain a visitor visa (costing £95) from the outset. Applications for these visas must have at least 48 hours’ notice, and cannot be submitted more than three months in advance.

A quick overview of visitor visas for business trips

Individuals taking this pathway must not be paid by the UK company, and the work activities they can carry out are limited.

Very occasionally this doesn’t apply. For example attending seminars, or to be briefed on a UK customer’s requirements where the work is to be undertaken outside of the UK.

If an individual is visiting from a different country, but is from the same company, they are also permitted to:

• Carry out trouble shooting activities.
• Work in an advisory or consultancy capacity.
• Administer training for employees.
• Share skills and expertise on a specific internal project (as long as they’re not working directly with clients).

What this means for funding overseas business visits

Funding for these business visits must either come from the non-UK based employer or the employee themselves. The traveller may need to show proof there’s enough funds available to cover accommodation and return travel.

Expenses can be paid by the UK company, but only towards genuine day to day costs such as sustenance and short taxi journeys.

Checking an employee’s right to work

It has long been a strict legal requirement for employers to check an employee’s eligibility to work in the UK before their job starts. This hasn’t changed. If the checks are carried out on their first day, they MUST be completed before their usual start time. This ensures the employer is covered by the statutory excuse.

An example:

A new employee is expected to work from 9am to 5pm, Monday to Friday. The employer, where they haven’t performed checks already, must therefore complete them before 9am on the employee’s first day. This is still the case even if their start time is a bit later than it normally would be, due to it being their first day.

What about retrospective right to work checks?

The government have made it clear that employers do not need to carry out checks on EU/EEA/Swiss Nationals retrospectively. Put another way, as long as the employee was already residing in the UK before the 30th December 2020, it’s still enough to simply check their passport/ID card. This will be the case up until the 30th June 2021. Employees also don’t need to show their employers that they have applied for pre-settled or settled status. However, things will change after the 30th June 2021.

From the 1st July, individuals must prove they have the right to work in the UK. This means that many employers aren’t planning to make checks on whether an employee’s pre-settled or settled status has in fact been granted until the 30th June has passed. In theory, this could cause problems if their application is denied, in which case employment is occurring illegally. Having said that, further guidance on this matter is expected.

New employees starting from the 1st July 2021 onwards will need to demonstrate that they’ve already been granted pre-settled or settled status. Again, it’s down to employers to check this.

Penalties for not checking

Due diligence is not optional and it’s a serious offence to employ someone who doesn’t have the right to work in the UK. Checking that every member of staff has the correct immigration status is a core duty of all UK employers.

Harsh penalties await those who don’t comply, and employers found to have employed illegal workers will be recorded on the Home Office central system. This will bring about more regular HMRC spot checks, and will likely affect the employer’s right to hire any foreign nationals later down the line.

Facts and figures

• According to quarterly reports generated by the UK Visas and Immigration Enforcement Agency, in 2016 alone 3,089 civil penalties were issued to employers for taking on illegal workers.
• More fines were given out in the regions of London and the South East than anywhere else in the country.
• The Home Office received more than £50 million as a result of the fines.
• Fines themselves can be as much as £20,000 per illegal worker. So for SMEs in particular, or organisations with multiple illegal workers on the books, the fines can be enough to put them out of business.
• Employers knowingly employing individuals that do not have the right to work in the UK can face jail time of up to five years. The illegal worker themselves could receive up to six months.

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About The Author

Elizabeth Hughes

A content writer specialising in business, finance, software, and beyond. I'm a wordsmith with a penchant for puns and making complex subjects accessible. Learn more about Elizabeth.

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