Right to work checks post Brexit - don't ask about settled status (yet)

It's been nine months since the UK left the EU and our one year 'transition' period ends at 11pm on Thursday 31 December 2020. As that date approaches, businesses are starting to think about their 'right to work' audits and what they need to do to make sure that staff from the EU have a legal right to continue to live and work in the UK from 2021.

Home Office guidance (which was last updated on 6 April 2020) makes it clear that employers should not ask existing employees about whether they've applied for settled or pre-settled status because EU citizens that are already working in the UK (as at 31 December) have until 30 June 2021 to apply under the EU settlement scheme.  

The current guidance states: “You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.” 

That said, there doesn't appear to be any specific penalties if you do ask these questions. 

Within the next month or so, we expect the Home Office to provide further guidance to help employers. Hopefully, these will address the question of when you can ask your EU staff about their status. Hopefully, you will be able to ask legitimate questions before 1 July 2021, because if you only find that they haven't applied for settled or pre-settled status on or before that date, they are likely to be working illegally and you'll have to act very quickly to investigate, dismiss them (fairly) and avoid penalties. 

EU settlement scheme

There is nothing to stop you encouraging staff to apply to remain in the UK under the EU settlement scheme and remind them of the deadline for applications - and we recommend you do so. The Home Office has an employer toolkit to help explain the process.

As a reminder, EU, EEA or Swiss citizens and their family members who are living in the UK before 1 January 2021 need to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. They will either be given settled status or pre-settled status. The status they get depends on how long they have lived in the UK when they apply. Their rights will be different depending on which status they get but in both cases they will be able to work in the UK.

EU citizens will usually get settled status if they’ve:

• started living in the UK by 31 December 2020; and
• lived in the UK for a continuous five year period (known as ‘continuous residence’)

EU citizens that don't have five years’ continuous residence on the date they apply will usually get pre-settled status (which is, essentially, a five year visa). They will only be able to apply if they have started living in the UK by 31 December 2020. They can change this to settled status once they have five years’ continuous residence provided they apply before their pre-settled status expires.

What about new recruits?

If you are employing someone new, you need to carry out your usual right to work checks. Although the Home Office has suggested that EU passports and national ID cards should be accepted as proof of right to work in the UK until 30 June 2021, it is highly recommended that from 1 January 2020 you ask every new recruit, including EU nationals about their UK immigration status (or the date of their arrival in the UK). After all, it is your responsibility as an employer to prevent illegal working in the UK.

If you are recruiting anyone from outside the UK (including EU citizens) from 1 January 2021, you must comply with the new immigration rules. 

Need more information?

Our employment expert Padma Tadi and immigration experts can help you stay on the right side of the law.