2021 Timeline for HR: Right to Work legislation updates

Major changes with regards to Right to Work legislation have arisen as a result of the UK’s exit from the EU and the gradual easing of lockdown restrictions that impact recruitment. Below represents a summary, there is however quite a lot of detail that needs to be understood and we urge any recruiter uncertain about the changes to get in contact – we will be delighted to educate you further.

The important dates in 2021 for HR to understand and ensure continued compliance when hiring are as follows:

 

 

Key Date #1: 1st July 2021 onwards

Passports and other forms of ID/residence documentation for EU Nationals and family members became invalid forms of Right to Work evidence from 1st July 2021. The new routes open to EU nationals to demonstrate Right to Work status are now either EU Settlement Status, or via a Skilled Worker Visa.

When hiring workers with EU Settlement Status already residing in the UK, it is important to keep in mind that:

1. Settled Status does not expire and there is no need to recheck
2. Pre-Settled Status does have an expiry date that employers will need to track and re-check

You will need to register for a license to sponsor EU Nationals arriving in the UK after 1st July 2021 with a Skilled Worker Visa (without EU Settlement Status) under the new UK points-based immigration system.

Other valid methods of an EU National/family member demonstrating Right to Work include:

1. Biometric Residence Permit/Card
2. On-line share code

When conducting checks using the online share code process, employers should now have the ability access and view the ‘profile page’ during the course of interviewing the candidate.

There are exceptions to the above changes. Ireland is treated as a special case due to the ‘Common Travel Area’ arrangement. This allows for Irish nationals to still use passports and other eligible documents, such as the newly introduced Irish Passport Card, as proof of Right to Work. Also a new category of Right to Work documentation has been created for individuals from the Channel Island and Isle of Man.

Key Date #2: 30th June 2021 – Checks on EU nationals prior to this date

Whilst the deadline (30th June 2021) for applications to the EU Settlement Scheme (EUSS) has now passed, the question we often encounter is:

‘What if I performed a check on an employee from the EU before 30th June 2021 who presented a passport. Should I ascertain if they still hold Right to Work eligibility in the UK i.e. have EU settled / pre-settled status?’

There is no requirement for a retrospective check to be undertaken, you will maintain a statutory excuse if the initial check was undertaken in line with the guidance applicable at the time. However, we would recommend for all EU nationals employed prior to the 30th June 2021, you do establish whether or not they have EUSS. This must be conducted in the right way to avoid potential issues of discrimination or privacy; should it become apparent an employee has missed the EUSS application deadline we can advise of the process that should be followed.

Key Date #3: 31st August 2021 – End of temporary COVID Adjusted ‘remote’ Right to Work Checks

The process for conducting RTW checks was adjusted on 30th March 2020 as a consequence of COVID. This ‘adjustment’ to the process is NO LONGER allowable after 31st August 2021, requiring the following actions to be taken by employers:

• Existing COVID Adjusted Checks must be retained and clearly marked as ‘adjusted checks’.
• Ensure ALL ‘adjusted checks’ were carried out correctly to obtain a Statutory Excuse.

From 31st August onwards recruiters must revert to the standard, non adjusted approach detailed within the Home Office 53-Page Employers Guide; if any employers has concerns, or doubts about what this process entails they should get in contact and we can clarify.

In summary, 2021 has seen some major changes to Right to Work legislation creating the possibility for employers to inadvertently make mistakes with major compliance ramifications. These changes do need to be fully understood, and vitally cascaded to front line recruiters/line managers, to ensure such mistakes do not arise.