Five things employers need to know about post-Brexit right to work checks

In this handy guide Jacqueline Moore, our Head of Immigration, highlights five key things employers need to be aware of regarding right to work checks following Brexit.

13 May 2021

In this handy guide Jacqueline Moore, our Head of Immigration, highlights five key issues for employers.

1. Why is a right to work (RTW) check important?

A RTW check is a process that all employers ought to undertake to establish whether their employees have the right to work in the UK.

Employers are under no legal duty to carry out a RTW check. However, by carrying out a correct RTW check an employer gains a full defence against a civil immigration penalty. This is a defence worth having, given that the financial penalty for employing a non-UK worker illegally starts at £15,000 per employee.

The ability to demonstrate that a RTW check has been carried out correctly is of critical importance where illegal employment is alleged by the Home Office or, in the case of those who hold Sponsor licences, where a Sponsor licence visit is carried out by the Home Office compliance team.

Currently, employers can continue to use EU passports and ID cards for RTW checks during a six-month “grace period” that lasts until 30 June 2021. After this date, EU workers will need to show valid leave to remain to their employers.

2. In-person RTW checks will be reintroduced on 21 June 2021

In response to the pandemic, the Home Office introduced changes to the RTW procedure, enabling employers to carry out remote RTW checks using scans or copies of documents as opposed to presenting physical documents. The Home Office is ending this concession on 21 June 2021, which will mean that after this date employers will need to ensure they have procedures in place to enable in-person RTW checks to be carried out prior to the person commencing employment.

Checks after 21 June 2021 will involve either original documents or the use of the online RTW checking service if the person has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme or Points Based System. As the online service is not applicable to British citizens, new starts who are British citizens will have to send their British passports to their employer in advance of their employment starting or will have to meet their employer in person and present their passport before their employment starts. Understandably, some people will be reluctant to send their British passport to a new employer, even using a courier, and there will be costs and logistical issues to overcome.

3. What are the consequences for an employer of not carrying out an appropriate RTW check?

If an employer does not conduct a RTW check in accordance with Home Office rules, the employer will not have a defence against a civil penalty if it transpires that the employee was working illegally. Knowingly employing someone who does not have the right to work is also a criminal offence that carries the risk of a custodial sentence. If the employer holds a Sponsor licence, failure to conduct RTW checks correctly, even where none of the employees is working illegally, can lead to concerns on a Sponsor licence compliance visit. Common mistakes include failing to date a RTW check, carrying it out after the person has commenced employment and retaining inadequate records of RTW checks.

4. What are the consequences for an employer if it later transpires that an existing EU staff member has not applied for settled or pre-settled status under the EU Settlement Scheme by the 30 June 2021 deadline?

While the employer may not face a civil penalty, they and their employee will face a break in employment while the issue is resolved. In all but exceptional cases, the employee will have to leave the UK in order to re-apply from overseas. Such breaks in employment are likely to last weeks rather than days, particularly if an employer does not hold a Sponsor licence and needs to apply for a licence in order to re-commence employment.

5. What should employers do to make sure they are prepared for these significant changes?

Firstly, they should ensure all those responsible for RTW checks are fully trained and aware of their importance for all new starts.

Secondly, they should ensure that RTW checks are conducted before the employee commences work. If an EU national is being recruited from 1 July 2021 onwards, then checks should also be carried out to ensure they hold appropriate leave to enter or remain in the UK.

Thirdly, RTW checks need to be carried out fairly. This means they should be applied consistently to all new starts, irrespective of nationality. This includes taking a robust approach to non-compliance with RTW requirements from all new starts, including British citizens.

Lastly, where a business does not hold a Sponsor licence and wishes to recruit non-UK or non-Irish employees, it should consider obtaining a Sponsor licence in advance to ensure there is no delay to recruiting new overseas talent from 1 July 2021.

If you require assistance with a RTW or other immigration issue then please contact either Jacqueline Moore or John Vassiliou of our immigration team. For more information about our immigration services, you can read our HR Immigration Solutions brochure.