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Employing EU Citizens in the UK

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New rules on employing EU citizens came into force in the UK from 1 January 2021.

For UK employers, the changes impact how you recruit and onboard EU nationals, requiring you to ensure the organisation is properly licensed and legally compliant in verifying EU workers’ Right to Work in the UK.

 

Hiring EU nationals in the UK under the new points-based system

From 2021, there will no longer be freedom of movement between the UK and European Union member states, and a new points-based immigration system will come into force in the UK. Under this new system, all non-UK residents, whether they are nationals of an EU or non-EU country, will be subject to the same requirement to apply for permission to come to the UK to live and work.

The new immigration rules will apply to foreign nationals arriving in the UK from 1 January 2021. This means that anyone coming to the UK to work after this date, excluding Irish citizens, will need to apply and pay for a visa in advance.

Employers planning to recruit EU national workers from 2021 will need to apply to the Home Office for a valid sponsor licence.

If you are already a licensed sponsor under the Tier 2 visa route, the organisation will automatically be granted a skilled worker licence under the new system, and likewise for intracompany transfer licences. The expiry date will be consistent with the current licence. You will not need to take action from 2021 to continue to sponsor skilled workers, provided you continue to meet the compliance and management duties under the licence.

If you already employ EU nationals in the UK, and they are resident in the UK by 31 December 2020, they will not be subject to the new rules, provided they apply for EU settled or pre-settled status under the EU Settlement Scheme. The deadline to register their lawful status under the scheme is 30 June 2021.

You will not need a sponsor licence to hire such UK resident EU workers who have an existing right to work in the UK.

 

EU workers already in the UK by 31 December 2020

The immigration status of EU citizens and their family members already living in the UK by 11pm on 31 December 2020 remains unchanged, provided they register for EU settled status by 30 June 2021. The application process is free-of-charge application, enabling them to continue living and working in the UK with lawful status from 1 July 2021.

 

EU workers arriving in the UK from 1 January 2021

Non-UK residents wishing to come to the UK to work after 1 January 2021 – including EU nationals (though with the exception of Irish citizens) – will need permission in advance from UK Visas and Immigration (UKVI). For new arrivals wanting to undertake work in the UK after this date, they will need to apply to UKVI for a points-based work visa.

 

Right to work checks & EU workers

Under the EU Settlement Scheme, those resident in the UK by 31 December 2020 will be eligible to apply before the 30 June 2021 deadline. Equally, under Home Office guidelines, employers will be given a ‘grace period’ until 30 June 2021, where they can continue to check an EU employee’s right to work by solely checking their passport or national ID card.

As such, during this period, it appears that employers will not be asked to differentiate between EU citizens who are eligible under the EU Settlement Scheme, but have not yet been granted settled or pre-settled status, and EU citizens who require a visa under the new points-based immigration system.

The Home Office guidance also states that an employer has a duty not to discriminate against EU, EEA or Swiss citizens. As such, you cannot require a prospective EU employee to provide proof of their EU settled or pre settled status until after 30 June 2021.

 

Right to work checks on existing EU employees

Under the Home Office guidelines, there is currently no requirement to make retrospective checks or carry out follow-up checks after 30 June 2021 for existing EU employees who commenced employment on or before 31 December 2020. This is despite the fact that many EU citizens who will have been employed before the end of the Brexit transition period may not have applied in time for leave to remain under the EU Settlement Scheme, or may have only been granted pre-settled status giving them time-limited permission to work in the UK.

Issues may also arise where an EU citizen employed between 31 December 2020 and 30 June 2021 arrived in the UK after 31 December 2020 and, as such, was never eligible to apply under the EU Settlement Scheme. In this scenario, the EU employee should have a valid UK visa.

As such, it may be extremely difficult for employers to ascertain an individual’s ongoing right to work based purely on a previous check of their passport or national ID card. In some cases, an employer may even become aware, or have reasonable grounds to suspect, that an EU employee never had, or has subsequently lost their right to work in the UK, but misguidedly seeks to rely on the grace period currently provided for by the Home Office.

Given the potential risks involved here for UK employers under the prevention of illegal working regime, it is hoped that the Home Office will release further guidance in due course.

 

Right to work checks on EU employees after 30 June 2021

After 30 June 2021, with the exception of Irish citizens who will continue to have the right to work as they do now, all EU citizens wanting to secure work in the UK will be required to have status either under the EU Settlement Scheme or a valid work visa under the new system.

This means that after this date, as the prospective employer of an EU citizen, you will be required to conduct a manual or online right to work check under the new rules. As such, you will either need to see an individual’s status under the EU Settlement Scheme or proof of an appropriate work-based visa under the points-based system.

You will also need a sponsor licence to employ skilled EU workers coming to the UK from 1 January 2021. If you are an approved sponsor of a skilled worker, you will be required to issue a certificate of sponsorship to the visa applicant showing that they have a genuine job offer from a licensed UK employer. This will enable them to make their visa application.

You must, however, still carry out a right to work check prior to the start of their employment to ensure they have a valid visa in place. You must also conduct a right to work check where an employee holds a visa that allows them to work in the UK without a licensed sponsor.

Where a right to work check confirms that there is a time limit on the EU employee’s right to work in the UK, a follow-up check should be carried out prior to the expiry date. This could be, for example, where they only have pre-settled status under the EU Settlement Scheme or they have been granted limited leave to remain under the points-based system.

 

Immigration compliance advice for employers

In preparation for 1 July 2021, UK employers of EEA nationals should:

  • Identify the number of EU nationals on your payroll. We recommend conducting an internal audit and categorising employees into three groups – British Citizens and ILR, EU Nationals and List B (visa holders).
  • Ascertain the workers’ length of service, period of residence in the UK and the date when they joined the organisation.
  • Review EEA workers’ right to work checks and ensure all retained document copies satisfy the requisite format.
  • Ascertain whether EEA workers have applied for pre-settled or settled status. Current government guidance states that employers are not to carry out retrospective checks on existing EU employees. It is the responsibility of the individual to make an application to the EU Settlement Scheme and there is no requirement for the individual to inform the employer that they have applied, or of the outcome of their application. Likewise, employers should not check that an employee has applied in order not to discriminate against EU nationals based on whether they have obtained pre-settled or settled status. We recommend that employers send out a communication about the EU Settlement Scheme directing employees to government information about the scheme, such as the Home Office’s employer toolkit, which provides materials to support EU citizens to apply to stay in the UK

 

How to conduct the Right to Work check

There are three types of right to work checks to evidence that a job applicant is allowed to work for you in the UK: a manual check of their original documents, using the online Right to Work Checking Service or using the Employer Checking Service.

 

Manual Right to Work checks

There are three basic steps to conducting a manual right to work check:

  • Ask to see the applicant’s original documents
  • Check that the documents are valid with the applicant present (*)
  • Make and retain copies of the documents, recording the date you made the check

 

When conducting a manual right to work check, you will need to ensure that:

  • The documents are genuine, original and unaltered
  • The documents belong to the person who has given them to you
  • The photos are the same across all documents and look like the applicant
  • If two documents give different names, the applicant has supporting documents showing why these are different, such as a marriage certificate or divorce decree
  • The dates of birth are the same across all documents
  • The dates for the applicant’s right to work in the UK have not expired
  • The applicant has permission to do the type of work you are offering, including any limit on the number of hours they can work
  • For students, you must see evidence of their study and vacation times.

 

When taking a copy of the documents, you must make a clear copy of each document in a format that cannot manually be altered. You should keep these copies for the duration of the employment and for a two year period after they stop working for you.

View our guide to Right to Work checks and documents here.

In response to the coronavirus pandemic, when carrying out manual right to work checks, there are temporary changes to the way you should physically check documents. Under the adjusted manual process you will need to ask for an applicant’s right to work documents to be sent digitally and then check the digital copies against the original documents via video call.

 

Online Right to Work Checking Service

If a job applicant uses the online Right to Work Checking Service, this will generate a share code. You must then use the employers’ online service to check their right to work by submitting this share code on the government website.

There are three basic steps to conducting an online right to work check:

  • View the individual’s right to work details by typing in the share code, together with their date of birth
  • Check that the photograph on the online right to work check is of the individual presenting themselves for work
  • Retain a clear copy of the response provided by the service for the duration of the individual’s employment and for two years after.

 

The online Right to Work Checking Service makes the checks simpler and more streamlined for employers, and provides greater security than a manual check as you no longer need to rely on physical documents, reducing the risk of forged documents being presented to you.

It is open to an EU citizen in the UK prior to 30 June 2021 to use the online Right to Work Checking Service, although you cannot force them to do so. Under the EU Settlement Scheme, EU citizens will not receive a physical document confirming their status, instead their status will be held in digital format. This means that where an individual has status under the scheme post-30 June 2021, you must conduct their check electronically, and cannot refuse an individual’s application based on them being unable to provide physical proof of their immigration status.

 

Employer Checking Service

In most cases you will be able to conduct either a manual or online check. However, in exceptional circumstances, the Employer Checking Service allows an employer to confirm a person’s right to work with the Home Office by completing an online application form, subject to having permission from the individual in question. These circumstances are where:

  • The individual cannot show you their documents because of an outstanding appeal, review or application with the Home Office
  • The individual has an Application Registration Card
  • The individual has a Certificate of Application less than six months old
  • The employee is a Commonwealth citizen who started living in the UK prior to 1988.

 

To request a check, in addition to providing the details of your business, you will need to provide the individual’s personal details, job title, hours worked per week, together with any Home Office reference number or case ID if they have one. You will need to see their original Application Registration Card or Certificate of Application, if this is what you’re checking.

Within five working days, you will receive either a Positive or Negative Verification Notice, either confirming or refuting a person’s right to work in the UK.

 

Penalties for non-compliance

The ability to work illegally can leave migrants vulnerable to exploitation and allow unscrupulous employers to undercut compliant businesses in the UK. To minimise these risks, all UK employers have a duty to prevent illegal working by carrying out prescribed right to work checks. As such, the consequences of non-compliance can be extremely serious.

Where an employer is found to have employed someone who is prohibited from working in the UK or undertaking the work in question by reason of their immigration status, they may be liable to pay a civil penalty of up to £20,000 per illegal worker. However, where a right to work check has been properly conducted, an employer will be able to establish a statutory excuse against any civil liability if an individual is later found to be working illegally for them.

If, on the other hand, you know or have reasonable cause to believe that you are employing someone without the right to work in the UK and you employ them anyway, you will not have a statutory excuse against liability for a civil penalty, regardless of whether you have conducted a right to work check. You also risk criminal prosecution punishable by imprisonment of up to five years and an unlimited fine.

On a final cautionary note, additional sanctions that may flow from non-compliance with the right to check rules include a possible downgrade, suspension or revocation of your sponsor licence. This will significantly affect your ability to sponsor both EU and non-EU migrants who come to the UK in the future. The removal of illegal workers could also disrupt your daily operations and result in serious damage to your business reputation.

 

Hiring EU workers from January 2021

EU nationals coming to the UK for work after 1 January 2021 will need to apply for a UK visa. In most cases, these will be work visas under the points-based immigration system.

The main work visa routes are the skilled worker route and the intracompany transfer route. Both require sponsorship by a licenced employer.

 

Skilled worker visa route

Skilled migrants from the EU looking to work in the UK must achieve at least 70 points to be eligible for the Skilled Worker visa. The following skilled worker visa requirements will apply to applicants:

  • They have a genuine job offer from a UK licensed sponsor under the points-based system
  • They speak English to the required standard
  • The job being recruited for is at the minimum required skill level of RQF3 (A level equivalent) or above – which is a lower skill level than under the previous Tier 2 visa route
  • They will be paid at least £25,600 or the going rate for the job offer, whichever is higher.

 

In some cases, where the job on offer will pay less than the general salary threshold or specific salary requirement, the applicant may still be eligible to apply by trading characteristics against a lower salary to attain the required number of points. If, for example, the job offer is less than the minimum salary requirement, an applicant may still be eligible if they have a PhD relevant to the job or the job falls within a specific shortage occupation.

The option of trading specific characteristics for points will only be available where the job pays no less than £20,480. There are, however, different salary rules for workers in some health or education jobs, and for new entrants at the beginning of their careers.

 

Intra-company transfers

Workers who are being transferred to the UK operations of a non-UK business should apply under the Intra-Company Transfer route. To be eligible, an applicant will need to be an existing worker who will undertake roles that meet the relevant skills and salary thresholds. Here, they will need to demonstrate:

  • They are being sponsored by a UK sponsor licensed to hire intra company transfer workers
  • They have 12 months’ experience working for a business overseas linked by ownership to the UK business they will work for
  • They will be undertaking a role at the required skill level of RQF6 or above, ie; equivalent to graduate level
  • They will be paid at least £41,500 or the going rate for the job, whichever is higher

 

If the applicant is to be paid over £73,900, they do not need to have worked overseas for 12 months. A worker may also be eligible under the Intra-Company Graduate Trainee route if they are to be transferred to the UK as part of a structured graduate training programme for up to one year – and for which there are different rules on length of overseas experience and salary.

 

Applying for a sponsor licence to employ EU nationals in the UK

If your organisation does not already hold a sponsorship licence and you have plans to employ EU nationals in the UK through one of the sponsorship routes from January 2021, you should apply for a licence now.

You will need to check your organisation is eligible to apply for a sponsor licence, select the correct type of licence for your recruitment needs, decide who will manage the licence on an ongoing basis, and apply online and pay the relevant fees.

The level of fee will depend on the type of licence sought and the size of your business. For example, for a small business applying for a skilled worker licence, the fee will be £536. For a medium or large business applying for a skilled worker licence, the fee will be £1,476.

In addition to the application fee, you will also be required to pay the Immigration Skills Charge for each skilled migrant worker you employ through the skilled worker and intra-company transfer routes. From 1 January 2021, this will include EU migrant workers. Employers must pay £1,000 per skilled worker for the first 12 months, with an additional £500 charge for each subsequent 6-month period, although discounted rates (of £364 and £182 respectively) apply to charities and small businesses.

Organisations are typically classed as a small business if the annual turnover is £10.2 million or less, or has up to 50 employees.

The standard processing time for a licence application is around eight weeks. For an additional £500, under the premium service, applicants can have an expedited decision within 10 working days.

If your licence application is successful, you will be granted an A’ rated sponsorship licence. Your licence will be valid for 4 years, subject to compliance with your sponsorship duties. For the duration of your licence validity, you will be permitted to assign Certificates of Sponsorship (CoS) to each foreign national you wish to sponsor. The fee for issuing each CoS is £199 per migrant worker.

 

Need assistance?

DavidsonMorris are UK business immigration specialists. We specialise in supporting employers to access the global talent market in order to meet their recruitment needs,  and are working with employers to support with the transition to the new immigration system. Our legal experts can guide your organisation through the changes necessary to adapt to the new rules while avoiding disruption to operations. For advice on international recruitment and employing foreign workers, contact us.

 

Hiring EU workers in the UK FAQs

Can EU nationals still work in the UK?

EU nationals are able to work in the UK from 1 January 2021 provided they have the relevant permission. If they are already resident in the UK by 31 December 2020, they should register for EU settled status. If they are coming to the UK after 2020 to work, they will need to apply for a visa.

Do EU nationals need visa for UK?

Whether or not an EU national needs a visa will depend on when they first arrived in the UK. If they are living in the UK by 31 December 2020, they should apply for settled or pre-settled status under the EU Settlement Scheme. For EU nationals coming to the UK after 1 January 2021 for work, they will need to be granted a visa under the UK’s new points-based system.

Do EU citizens need a national insurance number to work in the UK?

EU citizens will need a national insurance (NI) number to work in the UK, although they can start work without an NI number if they can prove their right to work. If an EU citizen is applying under the EU Settlement Scheme, they can use their national insurance number to help confirm their UK residence through automated checks of tax and benefit records.

Do EU citizens have the right to work in the UK?

After 31 December 2020, EU nationals who have applied for settled or pre-settled status under the EU Settlement Scheme will have the right to work in the UK. Under the new points-based immigration system, for EU citizens arriving in the UK after 1 January 2021, they will need to meet a specific set of requirements for which they will score points, where work-related visas will be granted to those who reach the relevant minimum points threshold.

What counts as proof of eligibility to work in the UK?

Up until 30 June 2021, an EU citizen can use their passport or national identity card as proof of eligibility to work in the UK. After this date, they will need to show their employer evidence of their immigration status under either the EU Settlement Scheme or a valid visa under the new UK points-based system.

Is a national insurance number proof of right to work?

To apply for a national insurance number you must have the right to work in the UK. However, when applying for a job in the UK, your employer will still be required to carry out a manual or online right to work check. This means you will still need to provide proof of your immigration status, for example, if you are an EU citizen, evidence of status under the EU Settlement Scheme.

Last updated: 30 December 2020

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