How To Conduct Right To Work Checks For EEA Nationals

Published date24 June 2021
Subject MatterEmployment and HR, Immigration, Employee Rights/ Labour Relations, General Immigration, Work Visas
Law FirmCleaver Fulton Rankin
AuthorMr Nathan Campbell

What are right to work checks?

Employers have an obligation to prevent illegal working in the UK. An employer commits a criminal offence if it knows, or has reasonable grounds to believe, that its employee does not have the right to work in the UK. More commonly, an employer commits a civil offence if it unknowingly employs an individual without the right to work in the UK and it does not have the statutory defence of having conducted a valid right to work check.

The right to work check is a three stage procedure of obtaining, checking and copying relevant ID documents in accordance with Home Office guidance. These checks should be done on all staff as it would be discriminatory to only target those that appear to be foreign. There is an incentive to do these checks as businesses can be fined up to '20,000 per illegal worker.

What checks traditionally were required for EEA nationals?

Prior to Brexit, EEA nationals had the right to live and work in the UK without a visa. All that was required to pass right to work checks was a passport or national identity card showing that the holder was a citizen of an EEA country or Switzerland.

Since Brexit, EEA nationals and their non EEA family members, that arrived in the UK on or before 31 December 2020 are eligible to apply for settled status (if they have five years of continuous residence) or pre settled status (if they have less than five years continuous residence). Up until 30 June 2021 EEA nationals can still satisfy right to work checks by providing their passport and there is no requirement for them to prove to employers that they have applied for settled or pre settled status.

What will be the position from 1 July 2021?

From 1 July 2021, EEA employees will need to show that they have settled or pre settled status or that they have applied for it and that they are either awaiting a result or their appeal rights have not been exhausted. This requirement does not apply to Irish nationals or EEA employees that are eligible to remain in the UK in another way (for example if they have dual British nationality or indefinite leave to remain).

The most common way that employees will be able to demonstrate their right to work is through the online 'prove your right to work to an employer' system. This enables applicants to provide employers with a share code and their date of birth, and employers can then check their status. Applicants with settled status will have a continuous right to work. Applicants with...

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