Brexit and right to work checks update

Posted by Monika Jones, 14th May 2019
With Brexit postponed, the Government reiterated its commitment to reaching a deal with the EU. Still, a no deal outcome remains a possibility and as a result some aspects of the position of EU nationals in the UK remain unsettled. Nevertheless, in recent months we have seen some welcome clarifications from the Government that are worth recapping.

UK leaves the EU with a deal

If the UK leaves the EU with a deal, there will be a transitional period until 31 December 2020. EU nationals arriving in the UK before the end of transitional period will be able to apply to the EU Settlement Scheme with the deadline for applications being 30 June 2021. Those arriving after 31 December 2020 would not qualify for inclusion in the Settlement Scheme, but will need to apply under the new immigration system which is to be operational from 2021.

UK leaves the EU without a deal

Only those EU nationals who enter the UK before it leaves the EU will be eligible to apply to the EU Settlement Scheme with the application deadline being 31 December 2020. The free movement will end after the exit date, but a form of a transitional period would still be put in place. EU nationals arriving in the UK after the UK departure, but before a new immigration system comes into force in 2021, will be able to enter the UK and reside for up to 3 months without needing to apply for permission. Those wishing to stay longer will need to apply for European Temporary Leave to Remain (ETLR) for a further 3 years. The same process would apply to non-EU family members. ETLR will not be extendable; anyone wishing to continue working in the UK will need to apply under the new immigration system in place from 2021.

Right to work checks and the new immigration system

The Home Office recognises that the transitional period in both scenarios is likely to cause some issues for employers and right to work checks. With that in mind, it has been confirmed that there will be no change in the way employers check right to work of EU nationals until 2021 when the new immigration system is introduced. Employers will not be expected to distinguish between EU nationals arriving before and post- Brexit, as well as between those who applied to Settlement Scheme and those who are eligible, but have not come around doing so yet.

On a more general note, from 28 January 2019, employers are able to carry out an online right to work check instead of the standard manual check. The check can be accessed here.

The online check is not available for all types of immigration status, but does cover individuals who have:

  • A biometric residence permit;
  • A biometric residence card; or
  • Status under the EU Settlement Scheme

There are some important points to remember when using the new online tool though. Firstly, any employee or potential candidate will need to provide the employer with a ‘share code’ to enable the check. Without this code a check cannot be performed. Secondly, the employer must always use the employer’s section rather than viewing the details via the employee’s account. Only correctly carried out check will provide the employer with a statutory excuse. Lastly, employers are prohibited from requiring employees to agree to the online check and should not draw any inferences from the fact that an employee’s preference is to have their right to work checked manually as both methods are equally valid.

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