We are in unprecedented times as employers have had to face multiple uncertainties over the recent months.
As lockdown eases, the focus for employers will switch from Covid-19 to planning for a Brexit future. The European Union Settlement Scheme was launched by the Home Office in 2019. The scheme enables EU citizens who are resident in the United Kingdom, prior to its departure from the European Union, having the ability to apply for ‘settled status’ or ‘pre-settled status’ before December 31st 2020.
How will the EU settled status affect Right to Work compliance?
The Home Office have stated that employers will not be required to make the distinction between EU nationals who moved to the UK before or after Brexit until the proposed new points-based immigration system is introduced with effect from January 2021.
Indeed, it would be extremely challenging for employers to distinguish between EU nationals who enter the UK after Brexit and EU citizens who are eligible for but yet to apply to the EU Settlement Scheme.
This means that until 31 December 2020, checks on an EU national’s Right to Work should be undertaken as they are now. All EU nationals will be able to prove their Right to Work by providing their passport, national identity card, or their digital status granted under the EU Settlement Scheme or the Euro TLR scheme.
However, by 30th June 2021, all employers will have to check that every EU Citizen that they employ either has settled or pre-settled status (if they were in the UK before 31 December 2020) or a valid BRP if they arrived after 1 January 2021. The details of the new points-based immigration system, and how this will operate, remain to be seen.
Contradiction Brexit and Right to Work
This gives all employers and landlords, who are also required to verify immigration status, a huge headache come June 2021. What do you do if you follow guidance, take on employees or tenants and then find out in July that they do not have a right to live or work in the UK? On 30th June you are not allowed to discriminate by requiring evidence, on 1st July you have to evict or fire them if they don’t have it. Some may require visas – yet the vast majority of UK businesses are not registered as sponsors, so would not be able to help them obtain a visa.
Proactive action to be taken
It is important that employers take proactive steps to prepare for the potential effects of Brexit as soon as possible to minimise any negative impacts. Businesses should:-
- Start collecting evidence of the Right to Work from those employees that are happy to provide it
- Collate a list of those employees that have not yet provided evidence, so that you can obtain it as soon as possible after 30 June 2021
- Consider obtaining a Sponsorship licence, to enable direct recruitment from overseas. In February 2020 only 28,734 companies in the UK were eligible to offer sponsorship. This is the highest number ever – but a very small proportion of the 1.4 million UK employers (source).
Non-compliance
The same legislation applies, under the Immigration, Asylum and Nationality Act 2006, where employers face civil penalties, and potentially criminal sanctions, if they employ an individual whose immigration status does not permit them to work in the UK or to carry out the particular work in question. Employers will be excused from sanctions if they can show they carried out prescribed document checks (i.e. ‘Right to Work’ checks) and retained documentation to prove this. The Home Office has very detailed rules on how and when these checks must be carried out and what evidence must be retained.
In summary
A growing number of organisations, from both the public and private sectors, are investing in digital Right to Work solutions now in both preparation for Brexit and for an increase in recruitment once the lockdown eases.
NorthRow works with clients across multiple sectors helping to digitally transform their Right to Work processes to enable recruitment teams to onboard employees efficiently whilst delivering ongoing Home Office compliance.
It is imperative that you organise your employment records now to ensure your onboarding teams have the very best tools to implement future changes, which will also help keep your business compliant, come what may!
