Employers need to understand the impact changes in employment law will have on their obligations to employees who hold citizenship outside the United Kingdom. Immigration laws are changing; this has a direct impact on the employment process.

Employers are already obligated to ensure that employees have a legal right to work in the UK, but Brexit will see changes to the rules.

Currently, citizens from the EU, Iceland, Liechtenstein and Norway (EEA countries) can live and work in the UK under ‘free movement of persons’ rules. This rule also applies to citizens of Switzerland.

Between the 1st of February 2020 and the 31st December 2020, EU/EEA/Swiss citizens can still come to the UK to work without having to obtain permission before their arrival.

On the 1st of January 2021, the Brexit transition period will end. EU/EEA/Swiss citizens arriving in the UK will need to gain permission to work in the UK. The rules will be aligned with the rules that apply to citizens from any other country in the world.

What are the potential consequences for employing foreign nationals unlawfully?
Employers are under a legal duty to prevent illegal working. The government can fine you if you fail to ensure that your employees have a legal right to work in the United Kingdom.

The maximum civil penalty (fine) is a maximum of £20,000 for every worker who does not have permission to carry out the work they are employed, by you, to do. Under the civil penalty scheme, an immigration officer who believes an organisation is employing an individual who does not have the correct permission to work in the UK can issue a notice imposing a hefty fine.

To gain a ‘statutory excuse’ against the civil penalty, you need carry out the ‘right to work’ checks in accordance with the Home Office process. Offers of employment should be made on the condition that the candidate successfully passes the right to work checks.

You will be deemed to have committed a criminal offence if you employ an individual and you have ‘reasonable cause to believe’ they do not have the right to work in the UK.

Since the 29th January of 2019, employers have been able to rely on the Home Office online right to work checking service to be granted the statutory excuse. If you use this service to check an individual’s immigration status, you will not be required to make further documentary checks. This rule will remain in place after the 1st of January 2021.

Does Brexit affect EU citizens I already employ?
Yes. EU citizens who are currently working for you, or who you recruit by 31 December 2020, need to take action to gain permission to remain in the UK. This rule applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Employees must apply to the EU Settlement Scheme. Successful application guarantees the right to continue living and working in the UK indefinitely.

How does the EU Settlement Scheme work?
Applications for the EU Settlement Scheme opened in March 2019 and will close on the 30th June 2021. Employees have until the 30th June 2021 to submit an application. Individuals must be in the UK by 31 December 2020 to apply. Anyone arriving after the 1st January 2021 are not eligible to apply.

Successful applicants who have five years’ continuous residence in the UK at the time of making the application will be granted ‘settled status’, meaning they will have indefinite leave to remain in the UK. Five years’ continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for six months in any 12-month period for five years in a row, with some exceptions.

Those who are resident in the UK by the 31st December 2020 (but do not have five years continuous residence by the date they apply) will be assigned ‘pre-settled status’. This status allows individuals to stay in the UK until they have reached the five-year residence point. In short, this rule allows non-UK nationals to stay in the UK for a maximum period of five years, and they can apply for settled status after this period.

How should employees apply to the EU Settlement Scheme?
Applications for the Scheme are made on the gov.uk website. There is no charge for applications.

Applicants will need to provide a valid passport or valid national identity card, and a digital photograph of their face. In the absence of these, in certain situations, alternative evidence may be acceptable.

Applicants can:

  • Scan their document and upload their photo using the ‘EU Exit: ID Document Check’ app using an Android phone, or an iPhone 7 or above
    Send their document in the post and upload their photo using the online application.

Proof of identity will be requested again when individuals apply to change their status from ‘settled’ to ‘pre-settled’.

Individuals can provide their national insurance number for an automated check of their residence based on tax and certain benefit records. If this check is successful, the individual will not need to provide any further documentation. If unsuccessful, the Home Office will provide instant instructions for what steps the applicant needs to take next.

On first glance the amended rules for employing non-UK citizens appear daunting, but we are here to help. Please contact us if you need any help.