The following guide for employers looks at the use of share codes in the context of EU settled status checks, including examples of when potential share code settled status issues can arise, and how these and other risks around conducting right to work checks can be avoided.
What is EU settled status?
Following the end of free movement between the UK and EU, with the exception of Irish citizens, all EEA and Swiss nationals must hold some form of valid immigration status to be able to work legally in the UK. In cases where an EEA or Swiss national has not yet made the move to the UK, they will typically now need a work visa under the UK’s new points-based immigration system.
However, where an EEA or Swiss national was resident in the UK prior to 31 December 2020, and they successfully applied under the EU Settlement Scheme (EUSS) prior to the 30 June 2021 deadline date, they should hold either settled or pre-settled status. In either case, valid status under the scheme will provide the individual in question with the right to continue to live, work and study in the UK, and to access benefits and healthcare services.
Settled status applies to EUSS applicants where that individual, at the time of application, had lived in the UK for a continuous period of 5 years. This will give that person permission to remain indefinitely in the UK free from immigration control. Pre-settled status is for those who were unable to meet the continuous residence requirement, although this will still allow them to live and work in the UK for a further 5-year period. They can also apply to switch to settled status as soon as they’ve been continuously resident in the UK for 5 years.
The deadline for most people to make an EUSS application was 30 June 2021. However, provisions have been issued under the scheme for late applications, where EEA and Swiss nationals, and any eligible family members, can show they have reasonable grounds for missing the deadline. These provisions cover a wide range of scenarios that may have prevented in-time applications, including being unaware of the deadline for various reasons.
What is an EU settled status check?
Employers are required by law to check someone’s immigration status before they hire them. In many cases, the prospective employee will have the option of either providing you with physical documents so that you can conduct a manual check of their right to work or, instead, agree to provide you with a share code so that you can conduct an online check.
Those with EU settled status will not have a physical document confirming their permission to live and work in the UK indefinitely, where this will be held in a digital format only. This means that you must conduct their right to work check electronically using the online Home Office ‘Right to Work Checking Service’ at GOV.UK. This online service will allow the migrant worker to provide you with a unique code to allow you to view their right to work in the UK.
To conduct a settled status check, you should follow this step-by-step process:
- open a web browser and type in ‘check right to work’
- click on the GOV.UK page ‘checking a job applicant’s right to work’
- choose the option ‘check the applicant’s right to work online’
- enter the applicant’s share code, followed by their date of birth
- check the confirmation of their name and right to work status
- check that the digital photograph is a match to your potential new recruit
- file a copy of the online confirmation and store it safely.
The information from an online check is provided in real-time, allowing you to instantly check your new recruits’ EU settled status. Provided the records show that the individual in question has been granted settled status, and you’re confident that the person in the photograph is the same person you plan to hire, you can proceed to onboarding your new recruit. However, you should securely store an electronic or hardcopy of the online service response for the duration of that person’s employment and for a period of at least 2 years afterwards.
How do employees obtain a share code to prove settled status?
The online ‘Right to Work Checking Service’ operates on the basis of the migrant worker first accessing the record of their immigration status using their passport or national identity card. If an individual has applied under the scheme as an eligible family member of an EEA or Swiss national, they can use their biometric residence card or permit to access their records.
To prove EU settled status, the prospective employee should follow this step-by-step process:
- open a web browser and type in ‘prove settled status’
- click on the GOV.UK page ‘view and prove your immigration status’
- add the identity document used to apply for settled status
- type in the serial number for that ID document, followed by their date of birth
- indicate if they wish to receive a security code by either text or email
- type in the 6-digit security code received
- scroll down to the option ‘prove your status’
- select ‘to prove my right to work’ as the reason for showing their status to someone else
- preview what you, as their potential new employer, will be able to see
- press ‘continue’ to generate a share code
- print the page showing the share code or send you an automated email.
It’s not sufficient for your prospective employee to print or screenshot the preview page of their right to work details to simply show you. They must provide you with a share code, giving you permission to view their immigration status online, so that you can access their right to work records independently. The share code will be valid for a period of 30 days.
How do employees obtain a share code to prove pre-settled status?
To prove EU pre-settled status, the prospective employee should follow the same step-by-step process as an individual with settled status. The fact that a person with pre-settled status doesn’t have permission to stay in the UK indefinitely doesn’t mean they don’t have a right to work. However, as this right is time-limited, you may need to conduct a further check during the course of their employment prior to expiry of their permission.
Pre-settled status provides an individual with the right to live and work in the UK for a period of 5 years from the grant of their application. This means that a person with pre-settled status will need to apply for settled status before the end of this 5-year period or, if they so choose, as soon as they meet the qualifying 5-year continuous residence requirement. Once a person proves settled status, there will be no need to conduct any further follow-up check.
What are the legal risks for failing to conduct a settled status check?
As an employer, you have a responsibility to prevent illegal working by conducting prescribed pre-employment right to work checks and, where applicable, follow-up checks, including for EEA or Swiss nationals. In this way you can ensure that any prospective or existing employees aren’t prohibited from working in the UK by reason of their immigration status.
By correctly conducting a right to work check before taking someone on, this will provide you with a statutory excuse against civil liability in the event that the individual in question is subsequently found to be working for you illegally. If you fail to conduct a right to work check before hiring someone, you may be liable to a civil penalty of up to £20,000 if that person doesn’t have permission to work in the UK. It’s also a criminal offence for you to employ someone if they’re prohibited from working by reason of their immigration status, and you either know or have reasonable cause to believe that this is the case. Employing illegal migrants is punishable by imprisonment and/or an unlimited fine.
It’s important to conduct right to work checks on all new hires to show consistent, transparent and non-discriminatory recruitment practices. If you only conduct checks on people who you believe are not British citizens, for example, on the basis of colour, ethnicity or national origin, you could find yourself defending allegations of racial discrimination. The UK population is ethnically diverse, where many people from ethnic minorities in this country are British citizens, and many non-British citizens from black and minority ethnic communities are legally entitled to work here. You mustn’t therefore make assumptions that someone from an ethnic minority is an immigrant, or that someone born abroad, or who speaks with a particular accent, isn’t allowed to work in the UK.
Are retrospective settled status checks needed for existing employees?
As an employer, and in accordance with the latest Home Office guidance, you’re not responsible for making sure any existing EEA or Swiss nationals on your payroll prior to 30 June 2021 have applied for status under the EU Settlement Scheme. This means that you don’t need to undertake retrospective right to work checks for those employed on or before this date. You’ll have a continuous statutory excuse against civil liability if you correctly conducted a right to work check using their passport or national identity card at the time of hire.
However, you may wish to conduct retrospective checks to ensure the stability of your workforce moving forward, although if you choose to carry out follow-up checks you must ensure that you do so in a non-discriminatory manner. Detailed guidance for employers on right to work checks, including what steps you should take if you identify or suspect an EEA or Swiss national to be working without immigration status, can be found at GOV.UK.
How can potential share code settled status issues arise?
The importance of conducting right to work checks, and to do so without discriminating against prospective or existing employees, cannot be underestimated. Unfortunately, there are a number of areas of risk involved, including potential share code settled status issues, for example, where an EEA or Swiss national, or eligible family member, has applied out-of-time for settled status but are still awaiting a Home Office decision. In these cases, they will not be able to prove their right to work by providing you with a share code.
The most recent guidance on late applications under the EU Settlement Scheme means that there may be a number of individuals who are potentially eligible to live and work in the UK but were, for some compelling or compassionate reason, prevented from applying in time.
The fact that someone has not yet received an immigration status decision doesn’t mean they don’t have a right to work. In these cases, you can still conduct a right to work check but will instead need to use the ‘Employer Checking Service’ to obtain written positive verification from the Home Office. To conduct a check using this service, you’ll need the individual’s date of birth, nationality and Home Office reference number from their certificate of application.
In circumstances where you’ve identified an individual without the right to work, and they fail to make an EUSS application within 28 days — having been given appropriate advice to do so and signposted to how to go about this — the current Home Office guidance is that you must take steps to cease their employment in accordance with UK right to work legislation.
How can any risks around right to work checks be avoided?
There are various legal risks around right to work checks, where the following best practice tips can not only help you to show respect for your staff, but for you to remain legally compliant in the context of the law on immigration, employment and equality, including:
- do not impose excessive requirements or single out EEA or Swiss nationals who want to work for you, as this could be construed as discriminatory
- the EUSS applies to a whole range of people, including eligible family members of EEA and Swiss nationals from all over the world, so you shouldn’t assume that just because someone isn’t from the EU that they don’t have settled or pre-settled status
- if you choose to conduct follow-up checks to ensure the stability of your workforce, ensure that you do so in a non-discriminatory manner
- do not refuse to employ an EEA or Swiss national based on them being unable to provide physical proof of their immigration status, as EU settled status is held in digital format only
- use the Employer Checking Service where settled status cannot be verified online
provide prospective employees with every opportunity to prove their right to work and don’t discriminate against those with an outstanding valid application for EUSS status.
DavidsonMorris provide expert guidance to UK employers on Right to Work compliance and meeting employer obligations under the prevention of illegal working regime. For specialist advice on how to avoid Home Office enforcement action, contact us.
Settled status share code FAQs
How do I get my share code?
To obtain a share code to prove your right to work in the UK, you’ll need to access the online Home Office ‘Right to Work’ service using your passport or national identity card, or your biometric residence card or permit.
What is a Home Office share code?
A Home Office share code is a number that can be obtained by accessing the online records of your immigration status, and can be used to prove, for example, your right to work in the UK.
How long does a share code last?
A share code will be valid for a period of 30 days and can be used to prove a person’s immigration status for various different reasons, for example, their right to work in the UK.
How do I send my settled status ID?
To prove settled status, you’ll need to provide a share code so that the person requesting verification can check this. You’ll need to access your immigration status records online, which will generate a code that can be emailed or printed.
Last updated: 22 November 2021