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UK immigration: New guidance on the prevention of illegal working

  • United Kingdom
  • Employment law
  • Global mobility and immigration

30-06-2021

A new draft Code of Practice on the prevention of illegal working was published on 11 June.  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.

Background

The guidance highlights the changes to the right-to-work checking process for EEA and Swiss nationals, together with third country family members, which will come 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.

Changes

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 prior to 1st July, 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 to familiarise yourself 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 to ensure that you do not discriminate when conducting right to work checks. You should conduct right to work checks on all potential employees, including British citizens.

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

Employers 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.  Many also will not be physically in their offices from 21st June onwards, especially given the extension to restrictions until 19th July, and remain unclear as to how they will manage the process. 

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.  

Next 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 1st July.