Business immigration – Right to Work

When the Brexit transition period ends, visa requirements for EU nationals will change impacting the right to work.

The Brexit transition period comes to an end on 31 December 2020, and with it ends the rights to free movement of EU nationals. From 1 January 2021, EU nationals will be subject to the same visa requirements as non-EU nationals. EU nationals already resident in the UK on or before 31 December 2020 may be eligible to apply under the EU Settlement Scheme for Settled or Pre-Settled Status. They have a grace period until 30 June 2021 to make these applications.

Now is the time for employers to consider how these changes may affect their business and what changes they may need to make to their right to work checks for employees.

Employers can continue to rely on EU passports or national ID cards as proof of right to work until 30 June 2021. However, they must not discriminate against EU nationals and cannot require them to show proof of settled status before this date. But they also have a legal duty to make sure they do not employ people illegally.

As a matter of law, seeing an EU passport after 1 January 2021 will not tell employers whether the individual is eligible under the EU Settlement Scheme (but, for example, hasn’t yet applied) and therefore has a legal right to work in the UK, or if they have entered the UK for the first time and need a visa before they have the right to work.

If the employer becomes aware that the individual has entered the UK for the first time on or after 1 January 2021 (for example, during the interview process or by looking at their CV), there is a risk they will “know or have reasonable cause to believe” they are working illegally. This is a criminal offence to which there is no defence. If found guilty, employers could face an unlimited fine and up to five years in prison.

This could also result in other consequences. Employers could have their sponsor licences revoked. This means that they will not be able to recruit non-UK nationals, and any existing sponsored staff will typically be given 60 days to leave the country.

It is vital employers think about how to balance the commercial and legal risks associated with potential discrimination claims and the risk of committing illegal working offences after 1 January 2021.

Our Business Immigration Team have expert knowledge of both immigration and employment law to help you navigate these issues. We are also here to advise you on how to handle all of the other implications arising from Brexit for your existing staff and future recruitment. If you wish to discuss these issues further, please contact Laura Darnley or another member of the team.