On 1 January the new immigration system came into effect. It means changes to the way employers hire people from overseas. But there is a transition period. Until 30 June, EU citizens can be retained and recruited as normal. The big change will come on 1 July when a worker will no longer be able to rely on EU citizenship for their right to work. This is where recruiters really need to know their responsibilities around Right to Work (RtW) checks.
What’s the situation now?
From 1 January to 30 June 2021, regardless of when they arrived in the UK, employers do not have to repeat RtW checks for EU nationals they already employ. What’s important is that you have evidence of a compliant RtW in accordance with the Home Office guidance.
Demonstrating that you checked a European passport or ID will still be sufficient to avoid blame if a worker is found to be working illegally. Employers can use the online checking service to perform a RtW check without seeing the original documents. The statutory excuse is crucial because it will protect an employer from receiving a fine arising from employing someone who is working illegally.
During this period EU nationals can and should apply for settled or pre-settled status.
Big changes come into effect from July
From 1 July 2021, new RtW checks will need to be done for all new candidates that are recruited. A European passport or ID card alone will no longer do, except in the case of Irish citizens. The candidate must have applied for settled or pre-settled status and have provided evidence of that. If they miss the deadline to apply for settled or pre-settled status (30 June 2021), they will not have the right to work in the UK.
Candidates that arrive in the UK from 1 July 2021 should have applied for and been granted a visa under the new immigration system. EU citizens, with the exception of Irish citizens, will have to apply under UK’s Points Based Immigration System. RtW checks from this time will need to be undertaken in line with the new Home Office guidance which we expect to be published soon.
Finally, employers must always consider the Equality Act 2010. Although having the right to work in the UK is required by law, employers should not make hiring decisions or have selection processes that could potentially give rise to unlawful race discrimination.
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