Right to work checks on EU, EEA & Swiss citizens – updated

Feb 24, 2021

Free movement ended on 31 December 2020. Under the new points-based immigration system EU and non-EU citizens are treated equally. Individuals who are not eligible for a status under the EU Settlement Scheme (EUSS) or don’t qualify for a frontier worker permit, must apply for permission in advance to enter the UK for work purposes. Migrate UK offers the following advice regarding right to work checks.

EEA and Swiss citizens applying for a skilled worker visa need a job offer from an approved sponsor. Employers need a sponsor licence to hire most workers from outside the UK.

The UK Home Office have recently published a series of leaflets and fact sheets called ‘Employer Partner Pack’ to help organisations familiarise themselves with the new points-based immigration system and how to carry out right to work checks on EU, EEA or Swiss citizens.

right to work checks 2021

complied by Judit Adorjan

Right to work checks before 30 June 2021

EEA and Swiss nationals starting a job in the UK in the first half of 2021 must be able to evidence their right to work by presenting a copy of their passport or national ID card to their employer.

According to the Code of Practice issued under section 23(1) of the Immigration, Asylum and Nationality Act 2006, employers have a duty not to discriminate against EU, EEA, or Swiss citizens by demanding them to show their status under the EU Settlement Scheme (EUSS) until after 30 June 2021. For example, requiring that a person has been resident in the UK for 5 years is likely to be indirectly discriminatory.

Therefore, employers should not make any further enquiries from job applicants regarding the date they have started to live or work in the UK. It is the EEA or Swiss national’s responsibility to obtain the appropriate permission to live and work in the UK.

EEA or Swiss citizens who arrived in the UK by 31 December 2020 and close family members who are joining them after this date must apply to the EUSS before 30 June 2021.

If you have a permanent residence card this will not be valid after 30 June 2021. Therefore, you should either apply to the EUSS or naturalise as a British Citizen before this date.

Irish citizens do not need to apply for permission to enter or remain in the UK, including a visa, any form of residence permit or employment permit. They can continue to prove their right to work in the UK as they do now.

Right to work checks from 1 July 2021

EU, EEA or Swiss nationals who have submitted their application to the EUSS can start work before their application has been decided, provided it has been submitted before the deadline and their employer receives confirmation from the Home Office that the application is valid.

Individuals who failed to submit their application by the deadline can lose their existing rights in the UK, including the right to live, work rent and access free healthcare.

EU, EEA and Swiss nationals who used the UK Immigration: ID Check App to apply for a visa under the points-based system will have online access to their immigration status. Those who applied using the online forms on the gov.uk website instead, will be issued with a biometric residence permit.

As right to work checks must be carried out based on the law in force at the time employment commenced, no retrospective checks are required on employees who have started to work for the organisation prior to 1 July 2021.

Should the employee later turn out to be an illegal worker the employer will not face any illegal working penalties, provided the right to work check has been carried out as outlined in the guidance.

Individuals who don’t have a visa, a frontier worker permit or a status under the EUSS or entered the UK as a tourist will not have the right to work in the UK.

Controls are in place to limit access to work, accommodation and public services for those who haven’t obtained the correct permission to live and work in the UK.

right to work checks 2021

Karen Kaur and Jonathan Beech – Immigration Lawyers

Contact Migrate UK for training programmes on how to carry out right to work checks and how to determine what documents can be accepted for EU, EEA or Swiss citizens and their family members.

Tel 01235 841 568 or email info@migrate-uk.com