The Home Office has finally published an updated version of its Employer's guide to right to work checks with a focus on clarifying the position for recruitment of EEA and Swiss (collectively 'EEA') citizens from 1 July 2021 when the Brexit grace period ends.

The update is needed because EEA citizens living in the UK by the end of 2020 must apply for status under the EU Settlement Scheme (EUSS) by 30 June 2021 to protect their right to live, work and study in the UK. The only exception is for Irish citizens, who are exempt from all UK immigration rules due to Common Travel Area arrangements. From 1 July employers must verify that new EEA citizen hires have the correct status to start work.

Separately, the Home Office has also published a welcome extension to the Coronavirus concession for employers, allowing remote RTW checks to continue until the end of August.

Why should employers care about RTW checks?

Conducting a valid RTW check before employment starts is the only way for employers to have a statutory excuse (defence) against a civil penalty for illegal working of up to £20,000 per worker.

The Home Office expects businesses holding a sponsor licence to have comprehensive recruitment processes and RTW evidence available on personnel files. In addition to fines, failure to comply could lead to sponsor licence revocation.

Finally, strong prevention of illegal working processes are important for reputation management reasons too. This is why many businesses extend RTW checks to workers and contractors as a best practice policy, even though the statutory guidance applies only to "employees".

Why are RTW checks changing?

Under the post-Brexit arrangements on citizens' status, the deadline for EEA citizens to apply to the EUSS is 30 June 2021. From that date, employers can no longer rely on an EEA citizen's passport or ID card as evidence of RTW. Instead, candidates will need to show either EUSS status or a visa entitling them to work under the UK's immigration rules. That's a big change, because for decades a European passport has been enough to prove RTW status in the UK.

What about European hires that joined us on or before 30 June 2021?

The new RTW rules only apply to checks conducted on or after 1 July 2021. It is enough to check and retain a dated copy of the passport or ID card of any EEA citizen hire that started employment before that date.

Importantly, provided you checked their passport or ID card before employment commenced, you do not need to monitor or record whether your EEA citizen staff in the UK applied to the EUSS by 30 June 2021. Nor do you need to do retrospective checks on their status after 30 June. If employees volunteer to share their digital EUSS status with you, as many have, you can of course retain that in your records. However, to avoid potential discrimination claims, you cannot make continued employment conditional on employees sharing their status or giving you information about it.

If it comes to light that an existing employee that started employment before 30 June 2021 has not applied to the EUSS and so does not have lawful immigration status, the guide sets out transitional measures. As the employee may have reasonable grounds for missing the 30 June deadline, you do not need to end employment immediately, but you should:

• encourage the individual to apply to the EUSS within 28 days and to provide you with a Certificate of Application as evidence (if they do not apply, you need to end their employment having taken appropriate legal advice)
• contact the ECS to provide a 6-month RTW in a Positive Verification Notice (PVN). You may need to provide evidence of employment starting before 30 June 2021, such as a copy of the initial RTW check. Repeat the ECS for further 6-month PVN periods as necessary until the EUSS decision is issued
• if the EUSS application is granted, do an online check on the digital status. If it is refused, you would have to end employment
• during the entire period – assuming the EUSS application is filed within 28 days – you will be protected from criminal liability for 'knowingly employing' workers unlawfully, and a civil penalty won't apply if a valid RTW check was performed on the passport or ID card when they joined the business.

What about European hires that join us on or shortly after 1 July 2021?

It depends on when you do the RTW check. If you do the check on or before 30 June, you can rely solely on the EEA passport or ID card, even if employment starts after 30 June. But any repeat check would need to comply with the new rules.

If you do the RTW check on or after 1 July, the new RTW rules will apply.

So, what exactly is changing?

Employers will be familiar with acceptable List A and List B RTW documents, which are being retained in that format.

A follow up RTW check is not required following completion of a compliant RTW check on a List A document. But presentation by a new hire of a List B document will mean that immigration permission is time-limited and employers must diarise a follow up RTW check prior to the end of the visa or permission. Please see Annex A and Annex B of the updated Employer's guide to right to work checks to see applicable versions of List A and List B up to 30 June and from 1 July 2021 respectively.

List A changes

• EEA passports or ID cards are no longer acceptable RTW evidence. The only exception is an Irish passport which is still acceptable evidence (British and Irish passports can be current or expired).
• Documents indicating temporary or permanent residence under any pre-Brexit EEA regulations (the legal system for EEA citizens resident in the UK before the EU Settlement Scheme was introduced) are no longer acceptable RTW evidence. For example, a Document Certifying Permanent Residence (DCPR) is no longer acceptable List A evidence.
• A document issued by the authorities in Jersey, Guernsey or the Isle of Man, once verified as valid by the Home Office's Employer Checking Service (ECS), has been added as an acceptable List A document.

List B changes

• In most cases, employers will check EEA immigration status and RTW using an online check on their digital status. (Most non-EEA citizens will continue to hold physical documents like a Biometric Residence Permit or a visa stamp in their passport, but employers can do online RTW checks on those too.)
• A frontier worker permit – a visa for EEA citizen with a track record of living outside the UK but working in the UK - has been added as an acceptable List B document.
• A document from the Home Office showing that the candidate has a pending application submitted to the EUSS by 30 June 2021 is acceptable evidence, once it is coupled with a 6-month PVN from the ECS allowing them to work.

What if a candidate says that they cannot present RTW documents?

If a candidate is unable to present acceptable RTW documents, they cannot start employment for you unless there is a valid reason for their failure to present documents for example:

• they have an ongoing immigration application or appeal with the Home Office
• their documents are with the Home Office in a pending application
• they present other information indicating they are a long-term resident of the UK who arrived in the UK before 1988.

In the case of a pending application, you'll also need to retain a document in Group 2 of List B, which means requesting a 6-month PVN from the ECS prior to the new hire starting work.

Where you conduct a repeat List B RTW check on an existing employee with time-limited status, and the worker tells you that that they have a pending application with the Home Office, you have a 28-day grace period from the visa end date in order to complete the ECS check. If you do not receive a response from the ECS within 5 working days, the Home Office should send an email with permission to continue employment until the ECS decision is issued. If you then get a PVN, you have a temporary 6-month RTW permission to cover the period until the decision is issued. If you receive a negative verification notice, you should take employment law advice on the position.

The 28-day grace period only applies to existing hires, not to new hires. If you need to check a List B Group 2 document for a new hire, you must ensure that you receive a PVN before the employee starts work.

What is the COVID RTW concession?

With so many employees working from home during the pandemic, the Home Office provided a temporary relaxation of RTW check rules to avoid the need for manual in-person checks. Following the delay in the relaxation of the stage 4 lockdown measures until 19 July at the earliest, the concession will now continue until 31 August 2021 (previously 20 June).

The concession permits employers to conduct a remote check using video calls and copies of List A/B documents rather than an in-person check using original documents. No retrospective manual checks are required once the concession ends. This has been a valuable benefit for employers because online checks are not available for all workers - for example RTW checks on British citizens can only be done manually - so it has avoided the need for face-to-face meetings.

From 1 September, we recommend you use online checks where available, but in all other cases you should expect to return to in-person manual checks unless there is a further extension. Ideally, the Home Office will make the concession permanent until online checks are available in all cases, but that may be too much to wish for!

What should we do to prepare for the changes?

• Check if you have any new EEA joiners starting employment on or around 1 July 2021. If so, decide whether the RTW check will be conducted by 30 June using existing rules, or after that date under the new rules.
• To avoid delays in the hiring timeline, update your HR team and hiring managers on the new RTW and on-boarding processes, particularly if you are a business that relies on – or has a high turnover of - European workers. Do make use of the COVID RTW concession until the end of August.
• Check your template offer letters, employment contracts and recruitment policies. If they refer to the specific List A and List B documents, they will need to be refreshed and if you have a prevention of illegal working policy that will also need to be updated.
• Ensure that it is understood internally that retrospective checks are not required on EEA citizen colleagues that started employment on or before 30 June 2021.
• Familiarise yourself with the updated Employer's guide to right to work checks. If you use the Home Office's 'Right to Work Checklist' for your personnel files, ensure you use the new version applying from 1 July 2021 (only for new hires from that date) once it is published.

If you would like to explore this further, please do get in touch with us.