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Immigration and Employment Issues for UK Employers of EU Nationals

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There was a time when our Immigration solicitors would not have needed to write an article on immigration and employment issues for UK employers of EU nationals. We fondly remember the days when the only thing UK business owners had to worry about were the immigration rules relating to their sponsorship and employment of non-EEA nationals. Those days are long gone with Brexit and the end of free movement.

In this blog, our Immigration solicitors answer 3 frequently asked questions relating to the post-Brexit employment of EU nationals.

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For Settled Status, Work Permit Visa, and sponsor licence immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

Do UK employers need to conduct right-to-work checks on EU employees?

The end of free movement for EU nationals, the lack of lower-skilled work visa route, the requirement to have a sponsor licence to employ EU and non-EEA workers and the UK skills shortage, all combine to result in pre-Brexit employed EU workers being highly prized employees that most business owners do not want to lose.

However, the law says that employers must carry out right-to-work checks on all employees and that an employer does not have protection against penalties for employing a person who does not have a right to work in the UK unless they have the statutory excuse of having conducted a right to work check on the employee.

As Immigration and Employment solicitors we are often asked if HR directors and employers are under an obligation to carry out supplemental right-to-work checks on employees from the EU who were employed by the company before 31 December 2020.

This question often crops up when the business is applying for a sponsor licence to sponsor Skilled Worker Visa applicants or if a business is worried that their sponsor licence application may be refused if they are found to not have been carrying out right-to-work checks correctly. Alternatively, once a company has a sponsor licence, they may be concerned that their licence might be downgraded or suspended if any errors in the conduct of right-to-work checks come to the attention of a Home Office official during a sponsor licence audit.

What are the rules on right-to-work checks for pre-Brexit EU nationals?    

If your business employed a worker from the EU before 1 July 2021 there is no legal requirement to complete a retrospective right-to-work check. A check must have been carried out before that date and completed correctly at the time it was undertaken to provide a statutory excuse against allegations of employing a person who does not have the right to work in the UK.

A business can choose to carry out retrospective right-to-work checks. For example, if they have doubts that they were completed fully in accordance with the rules at the time they were carried out. Any retrospective checks must be carried out in a non-discriminatory manner.

The Code of Practice for Employers: Avoiding Unlawful Discrimination While Preventing Illegal Working offers guidance for UK business owners and says that employers should not:

  • Discriminate when conducting right-to-work checks
  • Only carry out right-to-work checks on overseas workers
  • Make assumptions about an employee’s right to work in the UK or about their immigration status based on a protected characteristic such as their nationality or ethnicity or based on their name or accent

Failure to follow the guidance could form part of a discrimination claim under the Equality Act 2010 so employers need to balance the importance of right-to-work checks with ensuring that they are carried out fairly and without discrimination.

What are the rules on right-to-work checks for EEA citizens employed after 1 July 2021?

Since July 2021 EU nationals have not been able to use their passport to prove their right to work in the UK. This is because their nationality no longer gives them free movement rights. Instead, a right-to-work check needs to be carried out requiring the same evidence of right-to-work as any other person who is not a British citizen.

There have been lots of reports in the press about legal challenges to pre-settled status rules under the EU Settlement Scheme and these reports have led employers to question how the developments affect their ability to employ EU nationals and how best to conduct right-to-work checks.

From September 2023, the Home Office is extending the pre-settled status of those with pre-settled status by 2 years. This extension is automatic and therefore an application does not need to be made by the person with pre-settled status for an extension.

From an employer’s perspective, it makes life easier as the pre-settled status extension is added to the person’s digital record. That means when an employer carries out a right-to-work check the prospective or current employee is shown to have a right to work even if they did not apply for settled status after acquiring pre-settled status. An employer still needs to carry out a right-to-work check or repeat it (if the last one showed a limited right-to-work) to obtain or retain their statutory excuse.

What happens if a longstanding EU national employee does not have the right to work in the UK?

If a UK employer finds out that one of their employees is an EU national who entered the UK and now does not have a right to work in the UK then it can create both immigration and employment issues.

The discovery may have come about through a repeat right-to-work check or other means, such as a fellow employee reporting the issue or the information coming to light innocently in a staff appraisal because the employee did not realise that they needed to apply for pre-settled status or settled status under the EU Settlement Scheme.

There is government guidance on the process to adopt if an employee who is an EU national who was employed by your company before 30 June 2021 has not made an application under the EU Settlement Scheme and who does not have a continued right to live and work in the UK under another route.

The first point to stress is that the guidance does not require an employer to immediately terminate the employee’s contract of employment. Instead, an employer should:

  1. Advise the EU national employee to make a late application under the EU Settlement Scheme within 28 calendar days and evidence that they have done so by providing a digital share code so the right-to-work check can then be repeated using the Home Office online service
  2. If the employee refuses to apply to the EU Settlement Scheme their employment must be terminated. If it is not then the company will be at risk of prosecution for employing a person without the right to work in the UK and the business could also risk the suspension or revocation of their sponsor licence. A revocation of the sponsor licence would mean the business could not continue to employ any of its overseas sponsored workers
  3. Keep the evidence of the online right-to-work check as this provides a 6-month statutory excuse against a civil penalty. If the employee gets their settled status within 6 months the company should carry out a further right-to-work online check. If the settled status application is still pending then a further check is required to give another 6 months cover. If the application has been refused the employee’s employment will need to be terminated

Next steps

Our Immigration solicitors and Employment lawyers can help answer all your employment and sponsor licence related enquiries.

We can assist with:

  • Sponsor licence applications and renewals
  • Sponsor licence audits
  • Sponsor licence and right to work check training
  • Work Permit Visas
  • Sponsor licence problem shooting
  • Sponsor licence suspensions and revocations
  • Sponsor licence management services on fixed monthly retainers

UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers

For Settled Status, Work Permit Visa, and sponsor licence immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

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