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Kerry Eastman

HR Advisor - Uckfield

23rd June 2021

How will new immigration rules impact right to work checks?

How will the new immigration rules impact right to work checks? Background

New immigration rules came into force on 1 January 2021. They apply to both EU and non-EU citizens and require individuals to apply for a visa to be able to work, study or live in the UK. This also applies to EEA and Swiss Nationals (albeit Irish citizens are excluded).

You can find more information here. Gov.uk guidance

But how do the new rules affect right to work checks?

Right to Work Checks before 1 July 2021

Until 30 June 2021, employers should continue to carry out right to work checks as normal on all employees and workers before their first day of employment.

They must obtain from the employee or worker the relevant documents from List A or List B to establish a right to work.

In some instances, they may also use the online right to work checking service (available in respect of those with a biometric residence permit, a biometric residence card or those who have status issued under the EU settlement scheme). Do note however, that an employee or worker isn’t yet obliged to share their status with their employer by disclosing their right to work share code for use with the online service. Rather, they can provide their passport or national identity card to their employer as set out in List A or B up until 30 June 2021.

You may recall that the following temporary changes were made to the right to work regime in March 2021 to account for the impact of the pandemic:

  • right to work checks can be carried out via video call;
  • job applicants and existing employees/workers can provide scanned documents or a photo of relevant documents using email or a mobile app, rather than sending originals; and
  • employers can     use    the Employer    Checking    Service if     a     prospective    or     existing employee/worker cannot provide any of the accepted

These temporary measures will cease to apply on 20 June 2021.

Right to Work Checks from 1 July 2021

 From 1 July 2021, the following right to work checks must be carried out by employers:

British/Irish Nationals The employer must obtain from the employee or worker a document from List A (such as a passport or a birth certificate). If they do so they will have a continuous “statutory excuse” for the duration of the employee or worker’s employment and will not have to carry out any further checks.

NB: a driving licence CANNOT be provided as proof of right to work.

EEA/Swiss Nationals Online Checking Service*
Non-EEA Nationals Online Checking Service*

*the employee or worker must disclose their date of birth and right to work share code to their employer so that their right to work status can be checked.

Further information regarding right to work checks from 1 July 2021 is anticipated shortly and we will endeavour to provide you with the latest updates as and when they arrive.

For more guidance on right to work checks, please click Gov.uk guidance.

Penalties

It is vital that employers follow the Government’s guidance in connection with right to work checks. Failure to do so may result in civil penalties, including a £20,000 fine for each employee working illegally.

Retention Periods

Employers must ensure they retain a copy of any and all right to work checks carried out, time stamping the relevant documents with the date they were conducted and retaining them for the duration of the employee or worker’s employment and two years thereafter.

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