Right to Work checks 2021 – Q&A

With the dust settling on the UK’s exit from the EU, we address the common queries we are encountering regarding Right to Work checks.

Do we still need to conduct Right to Work checks?

Yes they remain a mandatory requirement when undertaking any form of recruitment and must be conducted on all applicants, regardless of their nationality, including UK citizens.

Do we need to re-check our existing employees?

The short answer is no. Providing you are confident that the check conducted at the original point of recruitment is a compliant Right to Work check (and could produce the requisite documentary records/evidence should you be called upon to do so) there is no requirement for you to undertake retrospective checks.

What should we do with checks undertaken remotely last year due to COVID-19?

Nothing as yet. The Government is yet to announce when COVID-19 measures in relation to Right to Works have ended. When this announcement is made employers will have 8 weeks to undertake retrospective checks which must include physical inspection of original ID documentation; adequate records of both checks must be retained.

We have a number of existing employees who are EU citizens, what do we need to do with regards to the EU settlement scheme?

Whilst there is no legal obligation for you to communicate the EU Settlement Scheme, the Government does recommend you promote the scheme to your employees and highlight the deadline of 30 June 2021 for applications – a template letter can be found here.

Should we check which employees have EU settled, or pre-settled status?

The government states that ‘you have a duty not to discriminate against EU citizens in light of the UK’s decision to leave the EU as both a prospective and current employer. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application’.

What will an employer’s position be should an employee fail to apply by the 30th June deadline?

This key question is yet to be clarified by the Home Office; technically individuals that do not apply by the deadline will no longer have a Right to Work in the UK. Hence, we would recommend employers do now take steps to (i) identify which existing employees are EU citizens, (ii) send them the template letter, (iii) keep a record of employees who volunteer information that they have applied.

How should we approach recruitment now when an EU citizen applies?

Once again you have a duty not to discriminate. You should check whether or not they were a resident in the UK by 31st December 2020 (a full list of evidence required can be found here). If they were resident by 31st December 2020, they have until 30 June 2021 to apply for the EU settlement scheme and in the meantime can rely on their EEA/Swiss passport or biometric EEA/Swiss National ID card to prove their right to work in the UK. If they moved to the UK after 31 December 2020, and have no prior residence in the UK, you will need to sponsor their visa application under the new UK points based immigration system.

We need to recruit from outside of the UK and have applied for sponsor licence, should we conduct an audit of our existing Right to Work checks?

A sponsor licence application may trigger a compliance visit by the Home Office. You should consider conducting audit of the records you hold for your employees to ensure that your recruitment processes, management and record keeping are compliant with right to work legislation. If you find any gaps in your documentation we would recommend undertaking fresh right to work checks, to retain alongside the original checks, and also conducting a thorough reviewing of your right to work processes.

Disclaimer: The information contained in this article is provided for information purposes only and should not be construed as legal advice on any matter. You should not rely on the information published on this website, which does not take account of individual circumstances and may not reflect recent changes in the law. While we make reasonable efforts to keep our information accurate, we assume no responsibility for its accuracy and correctness, or for any consequences of relying or acting upon it, howsoever arising.