14th Jul 2021

New 2021 UK Immigration System and Right to Work Checks

Brexit has brought with it a myriad of changes in regards to the immigration system and right to work processes. Before Brexit, as per free movement rights under the EU treaty, any EU/EEA and Swiss National could come to the UK to work in any capacity. All employers needed was a copy of their passport or National ID.

However, since 1 January 2021, this has changed. EU/EEA and Swiss Nationals can no longer enter the UK for work without first obtaining the required UK sponsorship and appropriate visa.

Irish nationals who have retained their free movement rights under the Common Travel Area arrangements are exempt.

See below a breakdown of some of the most important changes to keep informed on or get in touch to learn more or enquire about your specific situation. 

When will I need a visa?

EU, EEA, Swiss Citizens and other ‘non-visa nationals’ will not require a visa when visiting the UK for leisure purposes for up to 6 months. From 1 October 2021, EU/EEA and Swiss citizens will need a valid passport in order to enter the UK.

You will need to obtain a visa for all other purposes.

I’m an EU/EEA or Swiss Citizen who already lives here. What do I need?

If you have been living in the UK on or before 31 December 2020, you’ll need to apply to the EU Settlement Scheme to continue living and working in the UK. You must apply for this status prior to 30 June 2021.

If you already have settled or pre-settled status, you will not be given actual documentation but gain access to an online service. Here, you’ll be able to view your status and prove your immigration status to others.

Right to Work (RTW): What’s changed?

Before Brexit, eligibility to work in the UK was simply determined by providing a passport or National ID card to the employer. 

From 1 July 2021, employers will be required to obtain, check and retain evidence of EU/EEA or Swiss National’s status in the UK under the EUSS using the online system. You will not be required to do retrospective checks on EU/EEA or Swiss nationals who started working for you prior to 1 July 2021.

It’s important that you fully understand these new processes, as failing to follow them can lead to serious legal consequences. It is a criminal offence under the Immigration Act 2016 if you ‘know or have reasonable cause to believe that you are employing an illegal worker’.  It can lead to fines of up to £20,000 per illegal worker or, in severe cases, you could face a prison sentence of up to 5 years along with an unlimited fine and closure of the business.

If an application or appeal against a decision to refuse is pending, The Employer Checking Service remains active if required to obtain a Positive Verification Notice. ECS checks can take up to 5 days.

Right to Work checks online

If you hold a BRP or status under the EU Settlement Scheme, you can use the Right to Work online checking service.

Firstly, check your Right to Work record online. This is available from the Home Office website. The website will generate a ‘share code’, which is valid for 30 days.

An employer can use this share code and your date of birth to access the information via the employer part of the service.

How to conduct a check as an employer

You can access the Right to Work record using the 30-day code with the employee's date of birth. Once logged in, it’s important that you make sure that the photograph online is of the individual presenting themselves for work. 

Always retain a clear copy of the response provided and store it securely (electronically or as a hardcopy). This should be kept for the duration of the person’s employment and two years afterwards.

The Home Office retains an audit record of online checks conducted by employers. If done right, this will give you a statutory excuse against a civil penalty.

Employers must give employees every opportunity to demonstrate their right to work. If an employee cannot or does not wish to use the online service, you should conduct a manual check instead.

Step by step COVID Right to Work checks

Due to the pandemic, as of 30 March, 2020 RTW checks can be carried out via video call instead of in-person. The process is as follows:

  1. Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
  2. Then, arrange a video call with them. They’ll need to hold up the original documents to the camera and allow you to check them against the digital copy of the documents
  3. Record the date you made the check and mark it as ‘adjusted check undertaken on [insert date] due to COVID-19.’
  4. If the worker has a current BRP or status under the EU Settlement Scheme, you can use the Online Checking Service whilst on the call. Remember, the applicant must first permit you to view their details.

It’s essential to follow this guidance closely, as employers will maintain a defence against a civil penalty if the checks conducted during this period were done according to process. 

From 1 September 2021, face to face and physical document checks resume, and this guidance no longer applies. Retrospective checks will not be required.

Which documents am I required to keep?

If you are hiring Skilled Workers, you are required to request and keep the following documents:

  • Passport and entry visa and BRP/evidence of leave
  • Evidence and record of their UK entry date (must be during the validity of Entry Clearance) such as an entry stamp or travel ticket/boarding pass
  • Copy of National Insurance Number
  • A record of absences
  • An up-to-date record and history of contact details (residential address, personal email and phone number)
  • Contract of employment (names and signatures of all parties, start and end dates, details of the role, hours of work, an indication of salary)
  • Copy of payslips and evidence of the amount/frequency of all salary payments
  • Copy of any qualifications and references to show they have the skills and experience to do the job
  • Detailed job description

Relevant documents must be readily available/accessible either electronically or in paper form if required. Every document relating to a worker must be kept for the duration of the sponsorship plus one year.

Recruitment evidence

Under the new Skilled Worker route, there is no requirement to conduct an RLMT. 

However, you must still explain or provide evidence of how you have recruited the sponsored worker.

If an advert was placed, you should retain the following:

  • A screenshot or printout showing the content, location of advertising and duration
  • A record of the number of applicants and number shortlisted for interview
  • At least one of the following:
    • a list of common interview questions used for all candidates as part of your selection process 
    • brief notes on why the successful candidate was selected and why other candidates were rejected 
    • a copy or summary of the interview notes for the successful candidate 
    • information about any scoring or grading process you used to identify the successful candidate

If no advert was placed, you must be able to explain and, where possible, provide evidence of how the worker was identified as suitable for the role.

Sponsor reporting duties

As a Sponsor, you are responsible for reporting any changes or progress in your terms of employment. For example:

A Delay in Start Date
 You must also include the reason as well as their new proposed start date. 

If a Sponsored Worker’s Employment is Terminated
If a worker resigns or is dismissed, you must report it immediately. If known, you must include the name and address of any new employer that the worker has moved to and the worker’s last known residential address, telephone number, and personal email address.

Significant changes in Employment
This includes promotion, a change in job title or core duties, a change in work location, or salary change.

Absences without Permission
If a sponsored worker is absent from work for more than ten consecutive working days without permission, you must report this within ten working days of the 10th day of absence.

Withdrawal of Sponsorship

You may decide to withdraw Sponsorship if:

  • Their entry clearance or permission is refused.
  • They are absent from work without pay for more than four weeks, and the reason for the absence is not covered by the exceptions listed in the UKVI sponsor guidance.
  • They move into an immigration route that does not need a sponsor.

To avoid a penalty, you must report this withdrawal as soon as possible to the Home Office.