The majority of our workforce are EU nationals – what right to work checks are required?

Having a workforce which mainly comprises EU nationals brings a wealth of talent and diversity to your organisation. However, with the UK’s exit from the European Union (EU), ensuring you comply with right to work regulations becomes critical. This article outlines the essential right to work checks required for EU nationals in the post-Brexit landscape.

Understanding Right to Work Checks

Right to work checks are a legal obligation for all UK employers. They verify whether a prospective employee has the legal right to work in the UK. This helps prevent illegal working and protects your business from potential fines and penalties.

The Evolving Landscape for EU Nationals

Following Brexit, the status of EU nationals working in the UK has changed. However, Irish citizens retain their unrestricted right to work in the UK. For other EU, European Economic Area (EEA), and Swiss nationals, the process depends on their immigration status.

Ensuring that all employees have the right to work in the UK is a critical responsibility for employers, particularly in businesses where a significant portion of the workforce comprises EU nationals. Post-Brexit, the regulations surrounding the employment of EU nationals have undergone significant changes. Here’s a comprehensive overview of the right to work checks required for EU nationals.

Right to Work Checks: An Overview

Initial Requirements:

1. Pre-Employment Check: Before employing someone, employers must conduct a right to work check. This ensures that the individual is legally allowed to work in the UK.
2. Ongoing Monitoring: Employers must also ensure that they have systems in place to identify when an employee’s right to work is due to expire.

Categories of EU Nationals

1. EU Settled and Pre-Settled Status Holders:

• Settled Status: This status is granted to EU nationals who have lived in the UK for a continuous five-year period. It allows them to live, work, and stay indefinitely.
• Pre-Settled Status: This is for those who have not yet reached the five-year threshold. It allows them to stay in the UK for a further five years from the date they get pre-settled status and, once they reach the five-year mark, they can apply for settled status.

Verification Process:

• Employers can use the Home Office online service to check the right to work status of those holding settled or pre-settled status. The employee provides a share code, which the employer uses to view their status online.
• The alternative is to check the physical documents if the online service is not available.

2. EU Nationals Without Settled or Pre-Settled Status:

• Post-Brexit, new EU nationals moving to the UK for work need to comply with the UK’s new immigration system, typically requiring a visa under the points-based system.

Conducting Right to Work Checks

Changes Post-Brexit

Transitional Adjustments:

• During the transition period post-Brexit, temporary adjustments allowed employers to continue accepting EU, EEA, and Swiss passports or national identity cards as evidence of right to work up until 30 June, 2021.

Record-Keeping and Legal Compliance

Employers must keep records of right to work checks for the duration of the individual’s employment and for two years afterward. Failure to conduct proper right to work checks can result in severe penalties, including fines of up to £45,000 per illegal worker and potential damage to the company’s reputation.

Navigating right to work checks for EU nationals requires diligence and adherence to updated guidelines. By following the outlined steps and keeping abreast of changes in immigration law, employers can ensure compliance and avoid legal pitfalls.

Important to note: Repeat checks are no longer mandatory for holders of pre-settled status once an initial check is completed before employment starts. However, you can conduct follow-up checks, as long as you do so in a non-discriminatory manner.

Frontier Workers

EU citizens residing in the EU but working in the UK on a regular basis fall under the category of frontier workers. They require a Frontier Worker Permit to be eligible to work. For these individuals, you can either conduct a manual check using acceptable documents (passport and permit) or utilise the online service if they possess a digital permit.

EU Nationals without EUSS Status

EU nationals who did not apply for EUSS status may require a visa to work in the UK, depending on their circumstances. The specific right to work checks will vary based on the type of visa they hold.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK business immigration matters, including delivering bespoke advice or preparing discretionary applications. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on X, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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