The Home Office has updated its guide on right to work (work authorization) checks for employers in the UK.

Changes coming into effect this month include a less flexible approach to late applications to the EU Settlement Scheme (EUSS) for Europeans and their families and a hike in penalties for illegal working.

Right to work changes for EEA citizens

As a result of Brexit and the end of free movement on December 31, 2020, eligible European Economic Area (EEA) citizens and their family members were required to apply for EUSS status before June 30, 2021, to continue legally residing in the UK. EEA citizens and their families must now possess immigration status in the same way any other foreign national should and can no longer rely on their passports or national identity cards as proof of right to work.

For employers who conducted right to work checks on EEA migrant workers who began working prior to July 1,2021, there is no need to carry out retrospective checks. The statutory excuse against any liability for civil penalties established before this date will continue provided the employer undertook right to work checks in line with the guidance at the time.

Previously, where an employer had conducted a retrospective check (e.g., through an internal audit or due diligence in connection with a company takeover) and found an employee who should have applied to the EUSS but had not, a 28-day grace period was in place to allow their employees to make late EUSS applications and for the employer to obtain a Certificate of Application (CoA) to evidence their employee’s EUSS application. The CoA then protected the employer until their worker’s EUSS status had been determined.

The new guidance states that the employer will need to take “appropriate action” if they discover an existing employee that no longer has the right to work. The Home Office’s examples of “appropriate action” include contacting it for support via the UK Visas and Immigration (UKVI) helpline or by taking steps to terminate employment. This new approach appears to fall in line with the UK government’s new policy of limiting what they will accept as “reasonable grounds” for a late EUSS application, where, controversially, the applicant’s unawareness that they had to apply for the EUSS by the deadline will no longer be accepted as an excuse.

If an individual is able to make a late application and UKVI accepts the grounds for the delay as “reasonable,” and therefore deems it to be a valid application, the person will be issued a CoA while their full application is under consideration. They can then present an employer with a share code to check their right to work online. However, they are not permitted to work until their application has been accepted as valid (pending full consideration) and they have been issued a CoA. There is no grace period.

What about family members of EEA citizens?

Previous versions of the government’s right to work guidance for employers detailed that family members of EEA citizens who were residents in the UK before the end of Brexit’s implementation period were able to apply for EUSS family permits that were valid for up to six months, allowing them to join or visit their family member in the UK. The family members who wished to stay were required to apply for the EUSS within about three months of arriving in the UK.

The recent update removes the majority of this information and instead provides another reminder that non-EEA family members should have made an application to the EUSS before June 30, 2021, if they wished to continue residing in the UK. However, there remains a reference to EUSS family permits for family members of people from Northern Ireland who were resident in the UK by December 31, 2020.

Despite changes to the guidance on checking right to work, there does not appear to be any corresponding changes to the rules restricting family members of EEA nationals from outside Northern Ireland, so the new guidance appears incomplete. As such, there doesn’t appear to be any practical effect to these changes.

If an employer is presented with a valid passport containing an EUSS family permit, they can conduct a manual check on the document and it can count as a valid document showing the individual’s right to work in the UK for the duration of the permit. If that person goes on to apply under the EUSS and they are issued with a digital CoA or Pre-Settled Status, they can provide an employer with a share code to verify their right to work using the online service.

Illegal working fines triple

Employers found to have hired anyone without permission to work will face the biggest hike in civil penalties since 2014; penalties have tripled across the board, increasing from £15,000 to up to £45,000 per worker for a first breach, and from £20,000 to up to £60,000 per worker for repeated breaches. These changes came shortly after the announcement promising more immigration enforcement staff and compliance visits on sponsor license holders that employ migrant workers.

Carrying out right to work checks correctly before the employee commences employment affords employers a statutory excuse which protects them from civil penalties in the event an employee is found to be working illegally. You can read more about this development here.

Knowingly employing individuals without permission to work or having a reasonable cause to believe that they do not possess permission is a criminal offence that not only carries the newly increased civil penalties, but also potential imprisonment and further heftier fines.