New Year Changes to UK Immigration Rules.
The new year brought many changes to UK immigration rules. Employers need to keep up to speed with the latest developments. In particular, this concerns an important aspect of practical HR and compliance procedures, such as right to works checks. Incorrect right to work procedures may lead to large fines for the company and even criminal convictions. We therefore wanted to summarise the latest changes and points to note for directors and HR managers involved in hiring overseas nationals.
From 1 January 2021, EEA and Swiss nationals’ right to work in the UK depends on their UK arrival date. The Home Office updated its guidance on the right to work checks in December 2020. They confirmed no procedure changes on EEA citizens’ right to work checks until 30 June 2021.
Employers must not discriminate potential employees when conducting right to work checks. At the moment, EEA or Swiss passports or national identity cards are acceptable evidence to prove workers’ right to work in the UK. EEA or Swiss nationals can also choose to evidence their right to work in the UK using the Home Office’s online service if they have status under the EU settlement scheme. When conducting the right to work checks, employers cannot insist that EEA or Swiss nationals use the online service nor discriminate against those who use their passports or identity cards. This procedure remains in force during the Exit grace period, until 30 June 2021. The Home Office will provide new guidance on the right to work checks for EEA and Swiss nationals when the deadline approaches.
The Home Office also confirmed that for EEA and Swiss nationals employed on or before 30 June 202, employers will not need to conduct retrospective checks if the initial right to work checks were undertaken following the Home Office’s guidance.
While the procedure certainly brings comfort and relief to both employers and EEA and Swiss nationals, it also brings uncertainty to employers who employ or plan to employ EEA and Swiss citizens arriving on or from 1 January 2021. Current rules state that EEA and Swiss nationals, lawfully resident in the UK under the free movement law by 31 December 2020, are protected provided they apply for the EU Settlement Scheme before the deadline. They can prove their right to work by providing their passports / identify cards or their status under the EU settlement scheme. Those who have not yet applied under the EU Settlement Scheme can still do so until 30 June 2021.
In the meantime, those EEA and Swiss nationals arriving on or from 1 January 2021 do not have a right to work in the UK based on their nationality. To gain the right to work they would need to apply for skilled worker visa or other UK visa to take employment in the UK. This logically leads to a conclusion that the EEA and Swiss passports and identity cards would not be sufficient to prove one’s right to work in the UK. On the one hand, the Home Office emphasises employers should not discriminate against those EEA and Swiss nationals who use their passports or identity cards to prove their right to work in the UK. On the other, merely accepting these documents could potentially breach the Immigration rule. So, the person may be working in the UK without the proper right to work. For example, if the EEA or Swiss national entered the UK after 31 December 2020 as a visitor, they do not have the right to work in the UK. However, employers can find themselves in a difficult position – they cannot insist the potential employee use the Home Office online service to check if the right to work, but also need to be aware that not all EEA or Swiss nationals have this status.
As long as employers keep a record of the necessary right to work check on file completed before the person started working for them and the document is on the latest Home Office guidance, they will have a statutory excuse against any civil or criminal action. In the meantime, employees should be aware of the changes to immigration rules and not inadvertently find themselves working illegally in the UK. We therefore advise all EEA and Swiss nationals to make sure they obtain the necessary status in the UK.
British National (Overseas) (BNO) visa holders
The BN(O) route has recently opened on 31 December 2021. In the meantime, the Home Office has granted Leave outside of the Rules to over 7,000 BNO citizens and their family members. These BNO visa holders were granted Leave at the border and were stamped upon entry. They can now use a stamp in their passport to prove the right to work. Employers would not face a civil penalty if the initial right to work checks were undertaken in line with the guidance.
How can we help?
If you need legal assistance on your right to work checks or wish to know more about your responsibilities under UK immigration laws as an employer or employee, please contact Taylor Hampton’s immigration solicitors today on 020 7427 5972 or submit an enquiry here.