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Updated guidance on right to work checks

The guidance to employer’s right to work checks has been updated for the end of the current grace period which ends on 30 June 2021.

Employer’s have a responsibility to conduct right to work checks and there are significant civil and potential criminal liabilities for employing an illegal worker. The employer must conduct the check to ensure that a job applicant is allowed to work for them in the UK. The check should be conducted before the applicant is employed.

Right to work checks

In summary, the employer must do the following.

  • Ask to inspect the applicant’s required original documents.
  • Check that the documents are valid with the applicant present (this can currently be via video conference although face-to-face checks will be required from 1 September 2021).
  • Make and keep copies of the documents and record the date they made the check.

Dependant on the applicant’s circumstances, the documents can vary significantly. After 30 June 2021, new immigration rules for recruiting people from outside the UK will apply.

‘Transitional measure’

A substantial change to the guidance is the introduction of a ‘transitional measure’. The measures relate to persons who were existing employees at 30 June 2021 and who are ‘EEA citizens without lawful immigration status after 30 June 2021’ whose immigration position may be discovered during an internal audit or retrospective check.

The measure allows employers to give such employees notice to make an application to the EU Settlement Scheme within 28 days, and then they will obtain a six-month statutory excuse if they provide a Certificate of Application within that timeframe, which must be evidenced with a Positive Verification Notice from the Employer Checking Service.

It is crucial that employer’s keep aware of and act on the substantial changes to immigration law caused by the United Kingdom’s exit from the European Union.

Business immigration for employers

Our business immigration team advises on all UK jurisdiction business immigration matters – from Skilled Worker Sponsor Licences to Intra-Company Transfers from international group offices.  We provide right to work in the UK compliance support, assistance with workforce audits and advice dealing with issues that arise if an employee loses their right to work in the UK or if they have their leave to remain curtailed.

Our solicitors advise on the law of England & Wales, however our firm has widespread international law firm connections and can often assist with project management for international projects – for example, assisting your team with project management matters when you are transferring a senior employee to another international office working with foreign jurisdiction law firms.

If you need any assistance with right to work checks, or any other aspect of business immigration, please contact a member of our employment team.


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