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Right to work checks for EEA nationals during the first half of 2021

19 January 2021

The Home Office has confirmed that there will be no change to the right to work check procedure for EEA nationals who start work in the UK between 1 January 2021 and 30 June 2021 (the post-transition ‘grace period’), but has left the question of what to do when an EEA national does not have the right to work unanswered.

In an update to its Right to Work Check guidance for employers on 21 December 2020, the Home Office said that employers will be able to rely on the following documents to prove an EEA national’s right to work during the grace period as they do now:

  • An EEA passport
  • An EEA biometric ID card
  • A registration certificate
  • A document certifying permanent residence
  • An online right to work check proving that the individual has status under the EU Settlement Scheme

There is also no change to the right to work checks required for family members of EEA nationals.

The guidance also confirms that there will be no need for retrospective checks for employees who start work on or before 30 June 2021 after the grace period has ended.

This information had previously been confirmed on GOV.UK web pages, so the update to the main guidance document does not provide any new details.

There is still no specific guidance on what the Home Office expects employers to do in situations where an EEA national employee is found to not have the right to work, for example if they are an EEA national who arrived in the UK after 31 December 2020 in a capacity without working rights, for example as a visitor, or if an employee fails to apply to the EU Settlement Scheme before the deadline on 30 June 2021. Employers in this position would need to terminate the employment of the EEA national, or could otherwise face prosecution for knowingly employing – or having reasonable cause to believe – that they are employing an illegal worker.

The Home Office has not yet released its guidance on the policy for right to work checks from 1 July 2021 onwards. The new policy will be published before the end of the grace period.

If you have any questions on right to work checks for EEA nationals, or the EU Settlement Scheme for EEA nationals resident in the UK by 31 December 2021 and their family members, please do not hesitate to get in touch with a member of our Immigration team.

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Immigration

Brexit has substantial implications for immigration between the UK and the EEA/Switzerland (excluding Ireland). Businesses and individuals should ensure they have a plan in place for how to deal with the new immigration requirements that apply for EEA/Swiss (EEA) national workers and their family members from 11 pm on 31 December 2020, and for all other non-EEA national workers from 1 December 2020. Planning should also cover British nationals who are residing in the EEA, or who need to travel to the EEA from 11 pm on 31 December 2020.

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