Brexit – Guidance on employing EU, EEA and Swiss citizens
As a change from all things COVID, I thought I would provide you with an update in respect of Brexit – the other ‘hot topic’ of the moment.
The Home Office has recently released additional guidance for employers on employing EU, EEA and Swiss citizens in the U.K. after the end of the Brexit transition period.
So, firstly, a few key points…
• The way employers are required to check a job applicant’s right to work will be unchanged until 30 June 2021. Until this date, EU, EEA and Swiss citizens can prove their right to work as they do now, using a passport or national identity card or the online right to work checking service.
• The guidance reiterates that employers have a duty not to discriminate against EU, EEA or Swiss citizens. Employers cannot require applicants to show their status under the EU Settlement Scheme until after 30 June 2021.
• Irish citizens will continue to prove their right to work in the U.K. as they do now. Irish citizens are permitted to work in the U.K. by virtue of the Common Travel Area (“CTA”) between the U.K. and Ireland.
• EU, EEA and Swiss citizens and their family members who are residing in the U.K. by 31 December 2020 are reminded they have until 30 June 2021, to apply under the EU Settlement Scheme (“EUSS”) to continue living in the U.K. after this date.
• EU, EEA and Swiss citizens and their family members arriving in the U.K. from 1 January, will be required to make an application under the new immigration system to obtain a working visa in advance of moving to the U.K. This will require a job offer from an approved sponsor.
And now for some background…
The U.K. left the European Union on 31 January 2020, triggering a transition period ending on 31 December 2020. Freedom of movement will end 1 January 2021, and the U.K. will have a new immigration system, applicable to both European and non-Europeans alike.
While EU, EEA and Swiss citizens already living in the U.K. by the end of the transition period are able to secure their status in the U.K. using the EUSS (with a deadline of 30 June 2021), those arriving from 1 January 2021 will have to apply under the new immigration system.
And some analysis and comment…
This new guidance provides further clarity on a range of right to work obligations for businesses employing European nationals from 1 January 2021.
The new guidance also raises a question, however, surrounding what documentation can and cannot be requested, particularly for new European hires from 1 January 2021. It is clear that any EU, EEA or Swiss national who is already employed in the U.K. on 31 December 2020, will not require a retrospective right to work check. While these individuals are nonetheless required to apply under the EU Settlement Scheme (“EUSS”) by June 30, 2021, employers cannot require them to demonstrate they have made the application.
For new hires from 1 January 2021, it is clear that any EU, EEA or Swiss citizen not resident in the U.K. will require sponsorship under the new immigration system prior to starting employment.
For new hires of any European nationals already residing in the U.K., while these individuals may have already applied under the EUSS (and are required to do so by 30 June 2021), employers cannot require them to show any status granted under the EUSS until after 30 June 2021.
The guidance is therefore very clear on the requirements for right to work checks on EU, EEA and Swiss new hires between 1 January 2021 and 30 June 2021. Employers can check the job applicant’s right to work as they do now, by viewing either the passport or national identity card, or conducting an online check.
Crucially, employers cannot discriminate and refuse to employ an EU, EEA or Swiss national on the basis they have not yet obtained a status under the EUSS until after 30 June 2021.
Further, employers can be assured they will have a full statutory defence against any illegal employment even from just the passport copies for this population. Retrospective checks are not required on existing employees.
Nonetheless, employers should still be encouraged to provide regular communications to their employees to remind them to apply under the EUSS by 30 June 2021. In fact, this approach is encouraged by the Home Office, who have provided an “Employer Toolkit” – https://www.gov.uk/government/collections/eu-settlement-scheme-employer-toolkit – to provide signposting to businesses to help support their European citizen employees to stay in the U.K.
While the employer will have followed all the right to work guidance to establish a statutory defence, should any employee not have made the application by 30 June 2021, the individuals in question nonetheless require the status to continue lawfully residing in the U.K. Apart from the right to work, holding status under the EUSS is also required for accessing the NHS, schooling, travelling in and out the U.K., banking and renting a property, for instance.
So, in summary…
• Before 30 June 2021, there is essentially no change to the right to work process for employers hiring EU, EEA and Swiss nationals. If the individual is resident in the U.K. a simple right to work check can be carried out using the passport.
• Signposting can be given to employees regarding how to apply under the EUSS, but evidence cannot be requested that this has been done or permission obtained.
• If the EU, EEA or Swiss national is not resident in the U.K., a formal application is required under the new immigration system.
• No retrospective checks are required on existing employees.
• After 30 June 2021, all EU, EEA and Swiss national new hires will be required to show their permission to work in the U.K. either by holding a status under the EUSS or by first making an application under the new system.
As a final consideration…
It remains to be seen if any retrospective checks on holding a status under the EUSS will be required after 30 June 2021, in particular for those individuals hired between 1 January and 30 June 2021. Further guidance is expected to be released by the Home Office as we approach the end of the ‘period of grace’ on 30 June 2021.
In the meantime, employers can be reassured that the requirements for right to work checks on European nationals from January 2021 are perhaps less onerous than may have been anticipated. Indeed, in effect, the right to work check process essentially remains unchanged until after 30 June 2021, notwithstanding the fact that new European hires who are not resident in the U.K. will require working permission under the new immigration system.
If you have any questions relating to this, or to any other employment issue, please don’t hesitate to call me.