LAST CALL EU Settlement Scheme and NEW Right to Work guidance

With just a few more days to go, the deadline to submit an application under the EU Settlement Scheme (“EUSS”) is 30 June 2021. Failure to meet this deadline will mean that a person is in the UK unlawfully, although there are “reasonable grounds” to submit late applications.

If you are a UK employer, you will be interested to read the most recent Home Office guidance on right to work checks. This was published on 18 June 2021 and finally includes guidance relating to EEA citizens up to and including 30 June 2021, and from 1 July 2021.

In addition, the temporary COVID-19 right to work measures were due to end on 19 June 2021. However, the temporary changes are now due to end on 31 August 2021. As you may be aware, retrospective checks do not need to be carried out on compliant checks undertaken in line with the temporary measures.

Right to work checks up to and including 30 June 2021

In short, UK employers can still rely on EEA passports and national identity cards as proof of an EEA individual’s right to work in the UK. There is however, the need to ensure compliant evidence has been retained. By doing so, you can establish a statutory excuse and there is no need to carry out retrospective checks after 30 June 2021.

Right to work checks from 1 July 2021

From this date onwards, UK employers can continue to accept Irish passports and Irish passport cards as evidence of an Irish individual’s right to work in the UK.

For all other EEA citizens, UK employers will only be able to accept the same evidence which applies to all other foreign nationals.

In relation to EEA citizens, examples of acceptable evidence of right to work include:

Transitional measures until 31 December 2021

The new guidance sets out a new process which can be followed by UK employers until 31 December 2021. This will apply where you discover that an EEA individual in your workforce by 30 June 2021, has not made an EUSS application by 30 June 2021. In this situation, the EEA individual does not have status, but you do not need to immediately cease employment. You should record and maintain records of checks and actions taken, for example keeping comprehensive written correspondence and notes. A summary of the process is as follows:

  • advise the EEA individual to submit an EUSS application within 28 days and provide you with a Certificate of Application (“CoA”)
    • if the EEA individual fails to do so, you must take steps to cease employment in line with relevant legislation
  • contact the Employer Checking Service (“ECS”) once you have the CoA
  • receive a Positive Verification Notice (“PVN”) from the ECS if an application was submitted, which together with the CoA provide you with a 6-month statutory excuse
  • carry out a follow-up check with the ECS, before the PVN expires, to maintain a statutory excuse
  • continue with follow-up checks until the application has been finally determined. If finally determined and refused, you must take steps to cease employment in line with relevant legislation

Conclusion

It is recommended that UK employers keep good and compliant records. In addition, you would be well advised to diarise dates, and you may wish to do so in at least two different sources.

If you have any EEA individuals in your workforce, you may wish to recommend that they make sure they submit an EUSS application by the deadline of 30 June 2021.

It is also recommended that UK employers carefully review the new guidance and/or take appropriate legal advice to ensure your processes and procedures remain compliant. It will also be important to build up an awareness of the rules which apply up to 30 June 2021, and those which apply from 1 July 2021. By doing so you can minimise the risk of receiving a civil penalty of up to £20,000 per illegal worker.

OTHER ITEMS TO NOTE

Other than looking at the EUSS deadline and various right to work rules, changes and immigration related news/cases you might want to take a note of include:

  • the new Graduate route goes live from 1 July 2021 – individuals with this visa will be able to work in the UK without sponsorship
  • some EEA citizens may be able to rely on recently published EUSS COVID-19 concessions
  • countries such as Malta, Madeira, Spain’s Balearic Islands and various Caribbean islands are due to be added to the UK’s green list countries taking effect from 4am on 30 June 2021, although some are being added to the “green watchlist” meaning changes could be made at short notice

First published: 28 June 2021

Further information

If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Vincent Chung at: hello@dixcartuk.com or to your usual Dixcart contact.

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.