New Guidance Published on Post-Brexit Right to Work Checks

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At a Glance

• After Brexit, employers in the United Kingdom will need to continue to conduct right to work checks on all prospective employees.
• There will be no change to the way EU, European Economic Area and Swiss nationals prove their right to work in the United Kingdom until January 1, 2021. This remains the same if the United Kingdom leaves the European Union without a deal.

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The situation

The UK government has published new guidelines for how employers should conduct right to work checks after Brexit.

What employers will need to do

• Continue checks. After Brexit, employers in the United Kingdom will need to continue to conduct right to work checks on all prospective employees to comply with the rules prohibiting illegal work and unlawful discrimination. There will be no change to the way EU, European Economic Area (EEA) and Swiss nationals prove their right to work in the United Kingdom until January 1, 2021. This remains the same if the United Kingdom leaves the European Union without a deal.
• Online service available. Employers may use the Home Office online service for those employees granted status under the EU Settlement Scheme or who hold a Biometric Residence Permit.
• Seeking statutory excuse. As is currently the case, in order for an employer to obtain a statutory excuse from a civil penalty when employing a non-EU, EEA or Swiss family member of an EU, EEA or Swiss national, the prospective employee will need to show Home Office-issued documentation as set out in the legislation and guidance.

 

What employers will not need to do

Employers will not need to check whether their existing employees have status under the EU Settlement Scheme or European Temporary Leave to Remain (ETLR).

Employers will also not need to track the expiry date of the three-month Leave to Enter granted to those entering during the transition period.

Looking ahead

After January 1, 2021, new guidance will apply for right to work checks in readiness for the implementation of the future immigration system that is expected to focus on encouraging the migration of highly-skilled foreign nationals and will no longer differentiate between EU and non-EU nationals. Fragomen will report on this guidance when more information becomes available.

Please contact a Fragomen immigration professional for assistance in planning contingency arrangements in a single project.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].