Global menu

Our global pages

Close

Brexit: EU Nationals working in the UK

  • United Kingdom
  • Brexit
  • Employment law
  • Global mobility and immigration

29-10-2020

The UK left the European Union (EU) on 31 January 2020 and the end of the Brexit transition period will soon be upon us on 31 December 2020. It is important to consider what the end of the Brexit transition period will mean for organisations who wish to hire and continue to employ EU nationals beyond this date.

What is the current position?

EU nationals who are resident in the UK on/before 31 December 2020 can apply under the EU Settlement Scheme for either settled or pre-settled status to confirm their entitlement to work in the UK. They have until 30 June 2021 to apply and their right to work in the UK remains unaffected until then.

There is no requirement to undertake repeat right to work checks for those EU nationals you currently employ if you already have evidence of a compliant right to work check on file. You have a duty not to discriminate against EU, EEA or Swiss citizens. Therefore, you cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.

If you are currently in the process of recruiting an EU national, you should check their entitlement to work in the UK in the same way as you do now before employment commences. For example:

  • EU, EEA or Swiss citizens can use their passport or national ID card
  • non-EU, EEA or Swiss citizen family members can use an immigration status document from List A/B
  • EU, EEA and Swiss citizens and their family members can use the online right to work checking service if they agree to generate a share code to enable you to do so.

How do I complete right to work checks for any EU nationals employed between 1 January 2021 and 30 June 2021?

The Government has taken significant steps to redesign the UK’s Points Based Immigration System in readiness for the end of the transition period. A new immigration system will apply to people arriving in the UK from 1 January 2021 and EU citizens moving to the UK to work from that date onwards will need to get a visa in advance. In the absence of any new guidance being published in the coming weeks, employers are currently advised by the Government to complete right to work checks for any new EU hires (recruited between 1 January 2021 to 30 June 2021) in the same way as they do now, irrespective of when the EU candidate first arrived in the UK. For example, by checking an EU passport or national ID card in a way which establishes a statutory excuse before their employment commences. Ensuring you have a valid statutory excuse for every employee is crucial as it will defend an employer from receiving a civil penalty should it later transpire (unbeknownst to you) that the employee has been working illegally.

The Home Office guidance in this area is keen to ensure EU/EEA/Swiss nationals are not discriminated against when seeking to secure employment. However, undertaking a check using a new EU hire’s passport or national ID card alone will not distinguish between those with protected EU rights under the EU Settlement Scheme and those EU nationals who are new to the UK from 1 January 2021 so need to secure a working visa before commencing employment. As a consequence, this presents employers with the following legal issue; an employer cannot seek to rely on a statutory excuse if they know or have reasonable cause to believe that the new hire does not have the right to work in the UK.

Example:

If during the recruitment process you are informed (directly during the interview or indirectly via the CV or application form) that the new EU hire will be moving to the UK for the first time on 1 February 2021 to take up your job offer. It could be said that you should have been on notice that this new hire may not have any protected EU rights and, as such, requires a visa to work in the UK. Therefore, whilst the current Government guidance permits you to hire the individual using their passport or national ID card alone, the validity of your statutory excuse could be challenged as you have knowledge (or reasonable cause to believe) that they may not have the legal entitlement to work in the UK without a separate visa. As such, it raises a question as to whether you are expected to explore this further before hire.

This question is currently unaddressed in any Government guidance published to date and will need to be resolved in the form of further guidance from the Home Office to clarify whether an employer is exposed in any way if they do not question when their new EU hires first arrived in the UK and modify their right to work checks accordingly. Therefore, for now, employers should continue to look out for this clarification before determining how right to work checks for new hires will be carried out in practice from 1 January 2021 onwards.

There will be no changes to the rights of Irish Citizens to work in the UK and employers can continue to accept their passports as evidence of this.

How will I complete right to work checks after 30 June 2021?

Right to work checks for new hires after 30 June 2021 will need to be undertaken in line with the new Home Office guidance which we expect to be published at that time. At present, there is no suggestion of the need for retrospective right to work checks but, again, this will need to be considered in light of any new guidance published at that time.

What should organisations start to think about now?

1. Policies and contracts - many employers have documented policies, processes and guidance notes which are used by the business to ensure that all employees have the right to work in the UK. It is important that these documents are reviewed and updated in readiness for 2021. A review of your contract of employment to consider the benefit of immigration specific clauses would also be sensible.

2. Staff training - any employees who carry out right to work checks on behalf of the business should be given refresher training to ensure that they are aware of the new rules.

3. Recruitment costs - we recommend that employers consider their existing employee population and the number of EU nationals that they currently hire. Where employers are recruiting EU nationals on or after 1 January 2021, if they do not have settled or pre-settled status, it is likely that they will require sponsorship under the Skilled Worker route.

4. Discrimination risks - an increased demand for EU nationals requiring sponsorship from the start of 2021, together with the reduced skill and salary level for sponsoring migrants workers and the removal of the resident labour market test under the new immigration system, is likely to lead to employers considering the impact of increased recruitment costs on their organisation. Any policy, provision or criterion which disproportionately impacts EU and non-EU nationals is likely to expose employers to indirect race discrimination claims. Employers seeking to justify any such approach will need to demonstrate that the practice was a proportionate means of achieving a legitimate aim. With this in mind, it is important to note that Employment Tribunals do not look favourably upon employers which seek to justify discriminatory practices on the basis of cost alone. Therefore, advice should be taken on the robustness of any objective justification argument you intend to rely upon.

The end of 2020 and therefore the end of the Brexit transition period is nearly upon us and whilst employer attention has been significantly diverted by the COVID-19 pandemic this year, we strongly recommend that employers invest time now to prepare for hiring staff on or after 1 January 2021.