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EU Settlement Scheme and Right-to-Work Checks – What Now?

Prior to Brexit, freedom of movement between EU states meant that people from other EU nations had the right to live and work in the United Kingdom.  This meant that employers undertaking right-to-work checks with new employees could accept a passport from another EU country as proof of a new employee’s right to work in the UK. 

However, the United Kingdom officially left the European Union on 31st January 2020, leading to changes in these requirements.  Throughout 2020 a transitionary arrangement was in place, meaning that the rules did not change in effect, even though the UK had technically left the EU. 

Following this, there was then a grace period from 1st January 2021 to 30th June 2021.  During this time, EU citizens did not have the right to move to the UK and start work if they had not been here prior to 31st December 2020.  However, employers were not required to change their practices in terms of right-to-work checks during the grace period, unless they had specific knowledge that a person had entered the UK after 1st January 2021.  This was because the period was intended for EU citizens who were already living in the UK to apply for the EU Settlement Scheme (EUSS). 

Under the EUSS, EU citizens who had been in the UK for over five years could apply for Settled Status.  Those who moved to the UK prior to 31st December 2020 but have not yet been here five years could apply for Pre-Settled Status.  The deadline for applying was 30th June 2021 (with extensions only available in truly exceptional circumstances).  Individuals who were granted Settled or Pre-Settled Status would then retain the right to live and work in the UK. 

From 1st July 2021, a new immigration system came into full effect in the UK.  This applies to all people wanting to move to the UK from anywhere in the world, including the EU, and is known as the Points Based Immigration System (PBIS).  This also applies to people who moved from the EU to the UK after 1st January 2021, as arriving within the grace period did not give them the right to apply for Settled or Pre-Settled Status.   

There are a range of categories of visa available under the PBIS, including skilled worker, temporary worker and graduate.  Any employers who wish to sponsor employees to move to the UK will need to hold a sponsor licence, and the role and individual will then need to meet certain criteria (such as a salary of £25,600 and passing a criminal record check). 

Knowingly employing somebody who does not have the right to work in the UK attracts both criminal sanctions (including up to five years in prison) and civil penalties (attracting an unlimited fine starting at £20,000 per employee), and so it is important that employers undertake right-to-work checks for all new employees.  The website provides an online checking service for this, and also guidance on the documents that can be accepted instead of an online check.  However, if you are undertaking manual document checks it is important to remember that EU passports and identify cards are no longer proof of right to work in the UK. 

Employers are not required to undertake retrospective checks for employees who started with them  prior to 1st July 2021, so long as a valid right-to-work check was undertaken before this.  However, if it is later found that the person entered the UK after 1st January 2021, then they will most likely lose their right to work in the UK, and so whilst the employer will not face any sanctions unless it is proven that they recruited the person knowing this, it is still likely that the new employee will no longer be able to work for them any more. 

As such, here at ViewHR we recommend that all employers undertake right-to-work checks prior to a new employee starting, by referring to the requirements set out on the website here:

It is important that employers do this is a non-discriminatory way, and so assumptions should not be made based on factors such as skin colour, name or accent.  Rather, the right-to-work status of all new employees should be checked in accordance with guidelines – this applies even if you have known somebody for years before recruiting them! 

ViewHR are experienced in supporting employers with systems and processes for recruiting, selecting and onboarding new employees, and can also facilitate an introduction to a specialist immigration solicitor if appropriate.  If you are an employer currently, or are planning to become one, please contact us for an initial discussion