The ongoing Brexit saga and Right to Work Checks

Updated 30 October 2019

The UK is now due to leave the EU by 31 January 2020.

If however in the unlikely circumstance that the UK leaves the EU in early 2020 without a deal, only EU nationals (references to EU nationals in this article also includes EEA and Swiss nationals) who are already living in the UK by that date will continue to have the right to live and work in the UK beyond 31 December 2020. There will therefore be an 11-month interim period whereby freedom of movement will continue, even for those who fall foul of the January 31 cut-off date. EU nationals and their family members must apply under the EU Settlement Scheme by 31 December 2020 in order to confirm their rights beyond this date.

If a deal is passed, the cut-off date to be living in the UK in order for rights to live and work in the UK to continue will be 31 December 2020. The deadline to apply under the Settlement Scheme will be 30 June 2021. Given the recent developments in the UK, this remains an ongoing process and is subject to change.

Employers concerned about differentiating between those who were living in the UK before or after the relevant cut-off date need not worry for the time being. There will be no change to how employers must check the right to work of EU nationals until 31 December 2020. As at the present time, employers should continue to check and copy an EU national’s original passport or national ID card (or other document set out in List A or B of the government right to work check guidance) in their presence on or before their first day of work, and hold this on file, to complete an acceptable right to work check before that date. Importantly, employers must take care not to discriminate against EU nationals, and must not require evidence of their status (beyond documents set out in the guidance) before 1 January 2021.

From 1 January 2021 onwards, the intention is that a new immigration system will apply.  We understand that employers will be required to check additional documents for any EU nationals starting employment after that date.  For EU nationals who have Settled or Pre-Settled status under the Settlement Scheme, this is most likely to be an online check of their status.  For those without, it will be checking and copying their passport and a Home Office issued right to work document (visa), in the same way that non-EU national right to work checks are currently made.  There will not be a requirement for employers to undertake retrospective checks on existing EU national employees.

So, for now the right to work check process has not been affected by Brexit and will not be until the close of 2020.  Employers should be mindful, however of the various cut off dates for their employees to be living in the UK and apply under the Settlement Scheme so that they are able to evidence a right to work in the UK beyond 1st January 2021. Employers should also be sure that they are holding accurate records for their EU national employees on file.