Free movement between the United Kingdom and the European Union ended at 11pm on 31 December 2020 and any EU citizens arriving in the UK after that time must now meet the same immigration requirements as migrants arriving from the rest of the world. This does not apply to Irish citizens.
New Immigration Status
EU citizens who have resided in the UK lawfully for five years by 31 December 2020 are able to apply for “settled status” which allows them to live and work in the UK.
EU citizens who have resided in the UK for fewer than five years are entitled to apply for “pre-settled status” until they reach the five year point and can then apply for settled status. Pre-settled status also allows them to continue to live and work in the UK.
Both of these applications must be submitted by 30 June 2021.
Right to work checks
Until 30 June 2021 employers can continue to check an EU national’s EU passport or national identity card to evidence their right to work in the UK. From 1 July 2021 employers will need to see proof of EU citizens’ immigration status to evidence their right to work in the UK before employment begins.
It will not be mandatory for employers to carry out retrospective checks on EU citizens who were employed before 30 June 2021. Providing the employer carried out a right to work check at the beginning of the employment and does not know or have reasonable cause to believe the employee does not have a right to work in the UK, the employer will have a continuous statutory excuse against a civil penalty in the event that the employee is found to be working illegally.
Due to the COVID-19 pandemic, employers have been able to carry out these right to work checks via video calls and by viewing scanned copies of documents. These temporary adjustments are ending on 20 June 2021 and from 21 June 2021 employers must revert to checking applicants’ original documents.
Risks to the Employer
It is illegal for an employer to employ someone who no longer has the right to work in the UK and doing so will put them at risk of both civil penalties and criminal sanctions.
If an employer incorrectly dismisses an employee on the ground that they do not have the right to work in the UK, then they could face claims for wrongful dismissal or unfair dismissal.
Employers could be at risk of claims for discrimination if they make assumptions about an applicant’s or employee’s immigration status or treat them differently to UK nationals.
Get in touch with an Employment Law solicitor
If you are an employer and would like tailored advice on what the risks are to you and your business, then please contact Employment Law Solicitor Lauren Ogden on 0161 838 7891 or email laurenogden@kuits.com
