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Education briefing - UK immigration: New guidance on the prevention of illegal working

  • United Kingdom
  • Education - Guides

01-07-2021

Background

Since 29 February 2008 employers have committed an offence under the Immigration, Asylum and Nationality Act 2006 it they employ a person who is subject to immigration control, aged over 16 who is not allowed to carry out the work in question. If it turns out that an employer has employed somebody who does not have the right to work then it will only escape liability if it has carried out a compliant right to work check.

Following Brexit, the ending of free movement between the UK and EEA on 31 December 2020 and the expiry of the six-months grace period on 30 June 2021 there are changes to the way a right to work in the UK can be demonstrated – most notably to the way EEA citizens will prove their right to work in the UK from 1 July 2021.

As a result, on 10 June 2021 the Home Office published a new draft Code of Practice on the prevention of illegal working. This was closely followed by updated guidance on the prevention of illegal working for employers on 18 June 2021.

These documents explain how the Government will administer the civil penalty scheme in respect of right-to-work checks from 1 July 2021 onwards and the ways in which right to work checks must now be conducted from this date. 

Changes

The guidance highlights the changes to the right-to-work checking process for EEA and Swiss nationals, together with third country family members, which came into effect on 1 July 2021. Employers will no longer able to accept EU/EEA passports or National ID cards (except for a passport/passport card from Ireland) as valid proof of right-to-work from that date although there is no need to retrospectively check the status of any such EEA employee who entered into employment up to and including 30 June 2021.

The draft code is to apply where an initial or repeat check on an existing employee is required on or after 1 July 2021. Should the check have been undertaken before that date, the currently existing Code of Practice will apply. That is of most importance in respect of EEA and Swiss citizens hired this year; if the check is made by the institution prior to 1 July 2021, a copy of their passport or national identity card will be sufficient to meet the requirements of the current Code of Practice.

The new employer guidance sets out an amended List A and B document list which must be followed from 1 July 2021 onwards. It is important that those within institutions who are responsible for carrying out right to work checks familiarise themselves with the entire guidance as there are a number of key changes. For example, the physical documents which may be accepted as evidence of status now include, amongst other things, an Irish passport card, a Frontier Worker Permit and a Certificate of Application from UKVI confirming an application under the EU Settlement Scheme was submitted on/before 30 June 2021.

It is important that institutions ensure that they do not discriminate when conducting right to work checks. This point is mentioned in both documents. The draft code states that employers should apply checks to all employees, whether or not they may already believe the employee to be legally in the UK. The updated guidance on the prevention of illegal working states that employers should conduct right to work checks on all potential employees, including British citizens and should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK. Whilst none of this is new it is an important reminder.

The guidance also helpfully sets out in detail how an employer should conduct a right to work check for EEA and Swiss citizens recruited on and after 1 July 2021 (which includes detailed guidance on how to conduct a valid online right to work check using a share code to verify someone’s EUSS digital status) and provides for a new 'transitional measure' relating to EEA nationals who were existing employees as at 30 June 2021.

Commentary

Institutions are being asked to make many changes in a short period regarding right-to-work checks. In addition to the requirement to confirm right-to-work online, the adjusted “virtual” check introduced during the COVID-19 pandemic is set to end on 31 August 2021. Our experience is that there remains a significant lack of knowledge regarding online right-to-work checks by potential users of this system.

The issue of whether existing EEA employees have made the necessary EUSS applications yet is, we find, a significant issue for clients at present. The guidance will assist in this, although the extent to which UK Visas and Immigration may impose penalties or seek prosecution of those who do not follow the requirements is yet to be seen.

Action

This is the most significant change to the right-to-work checking system since the civil penalty regime was introduced in 2008. HR teams need to familiarise themselves with the new Code of Practice and new employer guidance, ensure training needs in respect of the online checks are met and ensure they have access to suitable advice should there prove to be technical difficulties in the process from 1 July.