02 Sep

All employers are responsible for preventing illegal working by conducting right to work checks on all of their new recruits, before employment starts. The guidance on this has recently been updated for EEA workers, the latest version of the Home Office Right to Work guidance should be referred to for correct guidance.

This article, will provide a brief overview of the guidance, to help you get to grips with the changes.

Employers face the risk of a civil penalty in the event that a 'statutory excuse' can not be provided. An appropriate check of employee's certification constitutes as a statutory excuse.

Employers were previously able to assess an employee's right to work by presenting their EU passport or national ID card but these changes, mean that form 1st July 2021, this will no longer be acceptable. (This does not apply to Irish applicants).

You can check an employee's right to work by:

  • checking online, if the employee has given you their share code. This applies to employees who have settled or pre-settled status or have applied for a visa.
  • check the applicant's original documents

Some right to work status' may be time-limited, it is important to schedule a check-up on or around the expiry date, if an employee's right to work changes after its current expiration, you could, form that date, be seen to be employing this person illegally.

If an EEA citizen has already applied and been granted settled status, they will retain their continuous right to work in the UK.

EEA citizens - Resident before 30th December 2020

For employees who were resident in the UK before the end of 2020, the applications under the EU Settlement Scheme has now closed, if you have an employee who has not applied yet, they may still be able to, however, they must be able to provide 'reasonable grounds' for missing the deadline. 

If you find, following an internal audit, that a current employee has not applied for settled status, you do not need to immediately dismiss them, it is important to make the employee aware of their responsibility to take action, you, as an employer should

  • Inform the employee, preferably in writing, advising them of their status and to make their application within 28 days, the employee should then provide you with a certificate of application, which you can attach to their personnel file to satisfy your audit, and
  • The employee should collect their Positive Verification Notice form the Home Office Employer Checking Service.

You will need to follow up on this check, to ensure their status has been granted, if the application is not made, or the employees application is not successful, you will not be able to continue to employ them.

New EEA recruits - After 1st July 2021

From 1 July 2021, EEA citizens who have made a successful application under the EUSS are granted a digital immigration status linked to their passport and they are able to use this to prove their right to work using the Home Office online service. The EEA citizen will provide you with a ‘share code’ and their date of birth, which will enable you to check their settled status online. 

However, there may be some EEA citizens who did not apply under the EUSS but who can instead prove their right to work via other means including showing that they have ‘indefinite leave to remain’, a frontier work permit or other status under the new immigration Points-Based System.

EEA workers entering the UK from 1 January 2021

EEA citizens who entered the UK for the first time on or after 1 January 2021 are not eligible to apply under the EUSS. They will therefore not have the right to work unless they have another form of immigration status.  If this can not be provided, you will not be able to lawfully employ them.  


Our team of HR Case Managers can help you manage your right to work checks and internal audits of your employees right to work. To discuss your requirements, contact our team today.

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