Although the UK left the EU on 31 January 2020, Brexit transition arrangements delayed changes to the status and immigration rights of European nationals in the UK until after 30 June 2021.
New Home Office guidance on preventing illegal working has been published covering changes to document checks for EEA & Swiss nationals from 1 July 2021. The changes affect the rights of nationals of 31 EEA States including all EU countries, as well as Iceland, Liechtenstein, Norway and Switzerland. Irish citizens are not impacted.
What do employers need to know about the changes affecting EU workers in the UK?
EU settlement scheme closure
Applications for the EU settlement scheme must be made by 30 June 2021.
All EU, EEA and Swiss citizens and their family members who were living in the UK by 30 December 2020 had until 30 June 2021 to register for settled status or pre-settled status under the EU Settlement Scheme (EUSS) to continue to have the right to live, work, study and access free healthcare and benefits in the UK from 1 July 2021.
EEA nationals who have been living and working in the UK for continuous five years will be able to apply for full settled status. EEA nationals who do not yet have five years of continuous residency may be granted pre-settled status. After five years of UK residency with pre-settled status, they can then apply for full settled status.
Current holders of permanent residence cards who did not apply for naturalisation (British citizenship) will also have until 30 June 2021 to convert their permanent residence to settled status, as permanent residence will no longer be valid after the end of the implementation period.
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 their employer that they have applied, or of the outcome of their application.
While employers are not under a legal obligation to ensure their EU workers secure settled status, it is in an employer’s best interests to avoid issues with their workers’ immigration status and eligibility to work.
This means it is advisable to take steps to remind your EU employees of the scheme deadline and the importance of securing lawful status beyond 30 June 2021 for both themselves and their qualifying family members.
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.
Employers should refrain from checking that an employee has applied in order not to discriminate against EU nationals based on whether they have obtained pre-settled or settled status.
Right to work
30 June 2021 also sees the end of the current rules on acceptable documents for EU citizens proving their Right to Work in the UK. Up until and including this date, EU citizens can rely on their passport or national ID card, as well as the document certifying Permanent Residence or their Registration Certificate to evidence their Right to Work.
All of these documents are included in List A of the acceptable documents for right to work checks, and production of any one of these will provide their employer with a continuous statutory excuse if checked and copied correctly before the person starts working.
Those with an application pending under the EUSS can rely on a Certificate of Application as evidence of their continued right to work, until a decision is given.
Alternatively, an EEA national or their family member that has been granted a UK immigration status under the EU Settlement Scheme may choose to share evidence of their status under this scheme in order for an employer to conduct a right to work check via the online checking service.
Under these rules, employers are not required to check if an EEA national (or their family members) employee, or prospective employee, has applied for or has been granted a UK immigration status under the EU Settlement Scheme, and are not required to distinguish between those who have arrived in the UK before or after 31 January 2020. Employers must also not discriminate between those who have been granted status under the EU Settlement Scheme and those who have not.
From 1 July 2021, all new EU, EEA and Swiss employees you employ must show they hold valid pre-settled status, settled status or a valid visa to prove their Right to Work.
It will not be necessary to carry out retrospective Right to Work Checks on existing employees after 30 June 2021.
To prepare for 1 July 2021, we recommend conducting an audit of your workforce to categorise employees into three groups by nationality – British Citizens and those with ILR; EU Nationals; and List B workers with temporary leave to remain. Employers will not be required to carry out retrospective checks on existing EU employees. However, having a record of your workforce profile as at 30 June 2021 will be helpful to be clear on which set of rules apply to your new EU workers onboarded after 1 July 2021.
As part of the audit, it will also be helpful to ascertain workers’ length of service, period of residence in the UK and the date when they joined the organisation. You should then review your EEA workers’ Right to Work checks and ensure all retained document copies satisfy the requisite format.
Right to work changes from April 2022
Under new rules that take effect 6 April 2022, employers will only be able to verify the right to work status of Biometric Residence Card (BRC), Biometric Residence Permit (BRP), and Frontier Worker Permit (FWP) holders using the Home Office online service. Physical BRPs, BRCs, and FWPs will no longer be acceptable as proof of right to work, even if the document has a later expiration date.
The employer must do an online Right to Work check by inputting the individual’s information on the Home Office’s right to work website’s ‘checker’ section.
The amendments will not apply retroactively to BRC or BRP holders employed up to and including April 5, 2022; rather, the previous criteria for document checks will continue to apply for employers to fulfil their obligations under the prevention of illegal working regime.
Cross-border workers who are based in the EU but who work in the UK will be required to apply for a frontier worker permit to safeguard their status and permission to continue to enter the UK for work purposes without requiring a work visa.
The frontier worker permit is free, but strict requirements apply for cross-border workers to be eligible. The worker must:
- Be a citizen of an EU member state, Switzerland, Norway, Iceland or Liechtenstein.
- Not have their primary residence in the UK.
- Have started frontier work in the UK by 31 December 2020 with the same working pattern when applying for a frontier worker permit.
- Have kept working in the UK at least once every 12 months since they started working here.
EU nationals coming to the UK
Any EEA national arriving in the UK from 1 January 2021 will need to apply for a visa to be able to work here.
The new points-based system applies to both EEA and non-EEA nationals coming to the UK. Employers have to sponsor EEA nationals in the same way as they sponsor any non-EEA national working for them in the UK for skilled roles.
Any organisation hiring non-UK residents, including EEA nationals coming to the UK, now needs a sponsor licence to employ migrant workers under the main work visa routes – the Skilled Worker visa and ICT route.
Non-UK residents coming to the UK for work purposes are not permitted to gain entry as visitors. EU nationals should prepare to be questioned at the UK border as to their reason for travel. Should the border official have concerns about their intentions or plans, they have powers to detain and refuse entry. This will be recorded on the individual’s immigration record and may impact future immigration applications.
Reports of EU nationals being detained at the UK border, and in some cases refused entry, are emerging. Employers are advised to ensure any non-UK residents coming to the UK as business visitors – such as EU national employees attending business meetings in the UK, or candidates travelling for job interview – understand the UK visitor rules and travel with supporting documentation that supports their eligibility as genuine visitors.
As employer solutions lawyers, DavidsonMorris’ immigration specialists advise on all aspects of business immigration and workforce global mobility. Working closely with our expert HR consultants, we provide a holistic advisory and support service to enable employers to consider the full people and legal risk concerns of operating across borders after the end of EU free movement. For advice on the rights and status of frontier workers from 2021, or the rules of hiring EU workers in the UK, contact us.
Last updated: 18 December 2021