Right-to-work checks for EEA nationals during first half of 2021

The Home Office has confirmed that there will be no change to the right-to-work (RTW) check procedure for EEA nationals who start work in the United Kingdom between 1 January 2021 and 30 June 2021 (the post-transition grace period). However, it has left unanswered the question of what to do when an EEA national has no RTW.

In a 21 December 2020 update to its RTW check guidance for employers, the Home Office stated that employers will be able to rely on the following documents to prove an EEA national's RTW during the grace period as they do now:

• an EEA passport;
• an EEA biometric ID card;
• a registration certificate;
• a document certifying permanent residence; and
• an online RTW check proving that the individual has status under the EU Settlement Scheme.

There is also no change to the RTW checks required for family members of EEA nationals.

The guidance also confirms that there will be no need for retrospective checks for employees who start work on or before 30 June 2021 after the grace period has ended.

This information had previously been confirmed on the UK government website, so the update to the main guidance document provides no new details.

There is still no specific guidance on what the Home Office expects employers to do in situations where an EEA national employee is found to not have the RTW – for example, if they are an EEA national who arrived in the United Kingdom after 31 December 2020 in a capacity without working rights (eg, as a visitor) or if an employee fails to apply to the EU Settlement Scheme before the 30 June 2021 deadline. Employers in this position would need to terminate the employment of the EEA national or could otherwise face prosecution for knowingly employing – or having reasonable cause to believe – that they are employing an illegal worker.

At present, the Home Office has released no guidance on the policy for RTW checks from 1 July 2021 onwards. The new policy will be published before the end of the grace period.

For further information on this topic please contact Andrew Osborne or Bronte Cullum at Lewis Silkin by telephone (+44 20 7074 8000​) or email (andrew.osborne@lewissilkin.com or bronte.cullum@lewissilkin.com). The Lewis Silkin website can be accessed atwww.lewissilkin.com.