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New right to work checklist - Guest Article by Ian Holloway

I have written previously about the end of the EU Settlement Scheme (EUSS) on 30 June 2021.  This was the Scheme that allowed citizens in the United Kingdom (UK) under pre-EU Exit free movement to be granted Settled or Pre-Settled Status, effectively giving them status to remain and work in the UK.

European Union (EU), European Economic Area (EEA) and Swiss citizens no longer have the right to work in the UK using passports and national identity cards as evidence.  This does not apply to Irish citizens.  Plus, it is worth pointing out that citizens with an Indefinite Leave to Enter or Remain (ILE/R) document are not required to have made an application to the EUSS, though this option was available.

There are now a number of questions as a result:

  • What about late or outstanding applications?
  • What about updated guidance and checklists?
  • What about employers who employ citizens without Settled or Pre-Settled Status?

Late / Outstanding Applications

There will be some individuals who have not applied to the EUSS or a decision on the application has not been determined.  On 01 July 2021, the Home Office updated (and renamed) it’s guidance ‘Right to work checks supporting guidance’, deleting the line ‘We will provide guidance which explains what to do if you employed someone before 30 June 2021 and they haven’t applied to the EU Settlement Scheme by 30 June 2021’.  The guidance now says:

  • If Immigration Enforcement encounter EEA citizens (or family members) working without status, they will be given a written 28-day notice before enforcement action is taken. Late applications can be made if there is a ‘reasonable excuse’  See the Home Office’s own internal guidance (pages 26 to 44) on how they will view late applications and the reasonable excuses that they may accept
  • Where a status has not been determined (but an application has been made), the citizen (and / or family) can remain in the UK and have the right to work but will be issued with a digital Certificate of Application (CoA)

Employers need to be aware of both of the above.

Guidance and Checklists

On 01 July 2021 (not giving employers plenty of advance notice), employers should have the following in their digital libraries:

Employers should also be aware of the online right to work service and the Employer Checking Service (ECS) where the worker has made an application but is awaiting the determination.  Importantly, the ECS provides the employer with a Positive Verification Notice (PVN) which must be retained and gives the employer a statutory excuse against penalties for 6 months.

The supporting guidance makes clear that immigration status is vital for employers plus the fact that ECS and PVNs are transitional measures that expire on 31 December 2021.

Employing Citizens Without Settled or Pre-Settled Status

Page 44 is important for employers with the following statement about non-application to the EUSS:

If they do not make an application within 28 days, you must take steps to cease their employment in line with right to work legislation

The same will apply if the worker’s application for Settled or Pre-Settled status is refused.

Simply, immigration status and right to work checks conducted on or after 01 July 2021.  If there is no UK immigration status (Settled, Pre-Settled, Indefinite Leave to Enter or Remain etc), the individual is disqualified from working in the UK.

Note

Reference is made many times to checking original documents.

Do remember that on 18 June 2021, the Home Office and Immigration Enforcement amended the end date of the Covid-easement to 31 August 2021.  Up until this date, employers can rely on scans or photographs of original documents rather than have the actual documents.  At the moment, it’s back to face-to-face and physical document checks from 01 September 2021.

The normal process resumes from this date.

 

Ian Holloway Image

Ian Holloway is a highly respected payroll practitioner, writer, advisor and trainer. He has worked in the payroll profession for over 30 years and is now Payroll Consultant at i-Realise, an independent change management business operating in the HR & payroll space.

Ian has hands-on experience processing payrolls from all sectors, large and small. In 2011 he shifted focus to his passion for educating the profession and also worked on improving payroll software solutions to meet legislative requirements and business goals.  He is the Trailblazer Chair for the Level 3 Payroll Administrator Apprenticeship and the Level 5 Payroll Assistant Manager Apprenticeship. He also advises on the practical impacts of new government legislation.

As Payroll Consultant at i-Realise, Ian’s broad experience and up-to-date knowledge allows him to publish insights to UK HR & Payroll professionals through workshops, white papers, newsletters and face-to-face presentations.  Ian regularly speaks at industry conferences and is a featured writer for several Payroll, HR and Finance publications.  Ian leads i-Realise’s monthly payroll forum, a confidential platform for in-house payroll leaders and managers to discuss new legislation and collectively improve best practice.

You can contact Ian at iholloway@i-realise.co.uk

https://www.i-realise.co.uk/

 

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