Further guidance issued on right to work checks for EEA nationals during the grace period

Topics covered include checking right to work documentation issued under the Immigration Rules and carrying out retrospective right to work checks for existing employees.

The guidance is contained in an updated version of An employer’s guide to right to work checks, which was published on 17 March 2021. Points to note include the following:

• There is now an acknowledgement from the Home Office that employers may want to ensure the stability of their workforce during the grace period, and to help employees to obtain the appropriate immigration status they need to be able to work in the UK beyond the grace period

• Employers are advised that they may invite individuals who have been granted status under the EU Settlement Scheme or the post-Brexit immigration system to evidence their right to work using the Home Office online service, but during the grace period they cannot insist that an individual proves their right to work using the online service

• Employers are not required, but are allowed, to carry out retrospective right to work checks on existing EEA national/EEA family member employees, as long as these are conducted in a non-discriminatory way in accordance with the requirements of the Home Office’s Code of practice on avoiding unlawful discrimination while preventing illegal working

• If an EEA national (or presumably their family member, although this is not stated in the guidance) cannot provide documents in a retrospective check to the standard required to establish a statutory excuse, the employer is advised to contact the Employer Checking Service

• From 1 July 2021 the requirements for right to work checks for EEA nationals will change, and evidence of UK immigration status will be required using the Home Office’s online service, subject to limited exceptions

• New guidance on the requirements for right to work checks from 1 July 2021 will be published by the Home Office ahead of this date

For further information carrying out right to work checks for EEA nationals and their family members during the grace period, please see our previous webinar and FAQ, or contact a member of our Immigration Team.