Right to Work checks – updated Home Office guidance for Employers

The Home Office has just issued the latest update to the Employers Guide to Right to Work checks. The previous update issued by the Home Office in December addressed the UK’s departure from the EU and we would urge you to read our related blog article that provided an executive summary of this significant update. This latest update provides further guidance concerning Right to Work checks for EEA and Swiss nationals during the ‘grace period’ (1 January – 30 June 2021); applying to checks conducted on or after 17 December 2020.

In summary the update explains:

• The grace period protects the rights of EEA nationals residing in the UK at the end of the transition period (31/12/2020), but who haven’t yet been granted status under the EU Settlement Scheme. They will need to apply by the deadline of 30 June 2021.

• Employers are not expected to differentiate between EEA nationals who arrived before the end of the transition period (31 December 2020) and those subsequently ariving during the grace period from 1 January to 30 June 2021.

• Right to Work checks for EEA nationals will not change until after 30 June 2021. Until then, EEA nationals can use their passport or national identity card to evidence their right to work.

• Recognising employers will wish to ensure the stability of their workforce beyond 30 June 2021, the guidance suggests ‘inviting’ employees who already have status under the EU Settlement Scheme to evidence their Right to Work using the Home Office online service. Noting that employers cannot insist that EEA nationals use the online service or discriminate against those who wish to use their passport or national identity card during the grace period.

• There will be no mandatory requirement for retrospective checks to be undertaken on EEA nationals who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse if the initial Right to Work check was undertaken in line with this guidance.

• Should an EEA national be unable to provide acceptable documents because they have an outstanding EU Settlement Scheme application, the employer will need to contact the Employer Checking Service to establish a statutory excuse.

• From 1 July checks will change, and all EEA nationals will be required to demonstrate they have a right to work through evidence of their immigration status, rather than their nationality; new guidance on how to conduct right to work checks on EEA nationals from 1 July will be provided in advance of this date.

• Irish nationals will continue to have the right to work throughout and prove their Right to Work as they do now, for example by using their passport.

Should you have any queries about this new employer’s guidance from the Home Office, or require information tailored to your company’s needs please contact advice@rightcheck.io