RTW checks for EU nationals post-Brexit

Settled status is granted to those who have lived in the UK continuously for 5 years and if granted, allows you to continue living and working in the UK indefinitely.

Pre-settled status is granted to those who haven’t yet lived in the UK continuously for 5 years and so they are given the right to remain in the UK for a further 5 years, rather than permanently.  Individuals will then be able to convert this into settled status once they have reached 5 years in the UK in total.

Pre-settled status is granted for a limited period of time which allows the holder to reach 5 years in the UK and then to apply to convert this into settled status.  If the individual is unable to convert their pre-settled status into settled status, for example because they have spent more than 6 months in any 12 month period outside the UK they cannot renew their pre-settled status and so it will lapse on the expiry date.

In addition, pre-settled status is lost if they spend more than 2 consecutive years outside of the UK and settled status is lost by spending 5 consecutive years outside of the UK.

It can also be lost if they no longer meet the eligibility criteria, for example in relation to criminal offences.

Yes, as part of the right to work check.  Prospective employees will only be able to evidence their settled or pre-settled status through the online right to work check as they are not issued with physical documents proving their status.

The Home Office does not require employers to find out whether or not employees who began working for them by 30 June 2021 have applied under the EUSS.

So long as a compliant right to work check has been done, and provided there was no time limit on the right to work, you will be able to keep employing the EU national after 1 July 2021 without doing another check or seeing evidence of their status under the EUSS.

This is because you will receive the statutory excuse as a result of your compliant right to work check.  As a result, if an employee hasn’t applied under the EUSS and has become an overstayer – such that they don’t have the right to work – you as the employer can rely on the statutory excuse as a defence to employing them illegally.

The exception to this is that if you know or have reasonable cause to believe that they don’t have the right to work after 30th June 2021 e.g. because they haven’t applied or their application was rejected – this will render your statutory excuse null and void and expose the business to the civil penalty of £20,000 per illegal worker as well as a criminal offence.

If the employer knows or has reasonable cause to believe that the EU national has not made a valid application for status under the EUSS before 30 June 2021 and either does not have reasonable grounds for missing the EUSS application deadline or has not secured right to work under an alternative immigration route, then if they continue to employ the individual they risk jeopardising their statutory excuse.

We recommend that specific advice be sought from our immigration experts in these circumstances.

No.

If you have checked an employee’s right to work before their employment began, you don’t need to repeat your check.

If however you have never checked an employee’s right to work, it is recommended that you do this now.

If right to work checks aren’t carried out before employment begins and the employee is found not to have the right to work, the employer is at risk of being fined up to £60,000 per illegal worker.  This risk remains even if the right to work check is carried out after the employee begins work however it is better to carry out a late check than none at all as this will identify any concerns and give you the opportunity to resolve this or take action before the Home Office does.

Yes, everyone’s right to work needs to be checked.  Irish citizens were not required to apply under the EU Settlement Scheme and can live and work in the UK using their Irish passport or passport card (in either case, whether current or expired), or their Irish birth or adoption certificate together with an official document giving their National Insurance number and name.

Irish citizens can also apply for a frontier worker permit so they can prove their right to work using the Home Office online right to work service. A frontier worker is an EEA citizen who is resident outside the UK but who is economically active (employed or self-employed) in the UK.

If an employee failed to apply by 30 June 2021 they will have lost their right to live and work in the UK which would mean that they are an illegal worker.

There are some grounds on which discretion can be exercised to allow late applications but this would require specific advice and guidance.