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Update on the right to work checks you need to make in the event of a no deal Brexit

We still don't know if the UK will exit the EU on 31 October with or without a deal. Government ministers have talked about ending the free movement of people once we leave the UK. What does that mean for employers that engage or wish to recruit EU staff? 

Our immigration specialist Philip Barth provides some much needed clarity.

What are right to work checks?

Under the Immigration, Asylum and Nationality Act 2006, employers can face a civil penalty (ie a fine) if they employ a person whose immigration status does not permit them to work in the UK. They will be excused from the fine if they can show they carried out certain prescribed checks. These are called ‘right to work checks’. Detailed rules are set out in the Immigration (Restrictions on Employment) Order 2007 and are explained in Home Office guidance.

How do checks currently work for EU citizens?

At present, EU law on the free movement of persons means that any EU citizen can live and work in the UK without a visa. EU citizens can meet right to work checks by simply presenting a passport or national identity card.

Setting the scene

In mid-August Home Secretary Priti Patel floated the (new) policy that in a no-deal scenario freedom of movement – one of the four cornerstones of the European Union - would be brought to an end at midnight on 31 October 2019.

However, on 4 September 2019 the Government tore up these plans to end freedom of movement on 31 October 2019 following legal advice. Instead it has been decided to “unpick freedom of movement by adopting visible changes to immigration rules, one by one”.

The proposals for EU citizens arriving after exit day

The plan of the previous government under Theresa May was to introduce European Temporary Leave to Remain (‘EUTLR’), under which EU citizens could freely enter the UK for up to three months. Those wishing to stay for longer would need to apply for EUTLR which would last for three years and would give them the right to work.

Following its u-turn the Johnson Government on 4 September 2019 also announced a European Temporary Leave to Remain scheme (Euro TLR Scheme) according to which EU Citizens (including citizens of Iceland, Liechtenstein, Norway and Switzerland) who move to the UK for the first time after Brexit day on 31 October 2019 will be able to apply for a 36 month temporary immigration status.

For a transitional period after Brexit until 31 December 2020, EU citizens and their family members will be able to move to the UK and live, study and work as they do now. EU citizens and their close family members who do so after Brexit and wish to stay beyond 2020 will need to apply for European Temporary Leave to Remain.

The Government says that applications will involve a simple online process and identity, security and criminality checks.

Successful applicants to the Euro TLR Scheme will be granted a period of 36 months’ leave to remain in the UK, running from the date the leave is granted.

These proposed changes affect only those EU citizens who arrive after exit day.

The position of EU citizens resident in the UK before 31 October is covered by the EU Settlement Scheme, under which they will be entitled to continue living in the UK and apply for settled status after five years’ residence, provided that they apply for ‘settled’ or ‘pre-settled’ status before 31 December 2020.

What does this all mean for right to work checks?

Expert observers have suggested that it would not be possible to introduce meaningful restrictions on new EU migrants, as employers would not be able to distinguish between them and EU citizens who are eligible but yet to apply to the EU Settlement Scheme. If the Government’s plan is to impose restrictions on when new EU migrants can work, it raises the question of how such distinctions would be made.

The Home Office appears to say that employers will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the new, points-based immigration system is introduced from January 2021.

That would mean that until 31 December 2020, checks on an EU citizen’s right to work will be undertaken as they are now, and all EU citizens will be able to evidence their rights here using their passport or national identity card. As an alternative, an EU citizen will be able to use their digital status, granted under the EU Settlement Scheme or under the Euro TLR scheme, to prove their right to work via the Home Office’s digital status checking service.

This will change when the new points-based immigration system is introduced from January 2021, when employers will need to check that, in respect of any new recruitment or new provision of service, an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. This check will be undertaken when that individual applies for a new job, tenancy or bank account for example. It will not be done retrospectively.

Any changes to the rules on right to work checks would require secondary legislation to amend the 2007 Order.

Need more information?

Please contact our immigration expert Philip Barth if you need help dealing with right to work checks or any immigration or sponsor licence related matters.