This week we see the final implementation of one of the cornerstones of Brexit – the UK’s new right to work arrangements. So, from now on employers must identify if a potential worker – either employee or self-employed – has the right to work in the UK. It’s actually been a requirement for some time now, but the new regulations have somewhat crystallised the issue.
There are really two issues here:
- Does an individual have the right to live and work in the UK, and,
- Have you as an employer conformed with your legal obligations to check that right?
So, as we all know, before Brexit anyone from the European Economic Area (EEA) could live and work in the UK if they so chose. There were Visa requirements for people from everywhere else. The Brexit “divorce” deal gave protection to European workers who were already living and working here – they could apply to the Home Office under the EU settlement scheme (EUSS) for settled, pre-settled status or for a frontier workers visa. In practice the only difference between settled and pre-settled is time: settled applies to someone who has been here for more than five years, pre-settled for less. Frontier worker visa are for individuals who live in the EEA but have been economically active in the UK.
As of the 1st July 2021 the new point-based visa system for immigration applies to everyone who wants to live and work in the UK who is not a UK citizen, and has not already been granted leave to remain and work here under the EUSS, although there are temporary extensions for pending applications.
Any potential employer is obligated by law to ensure that individuals who work for them have the right to live and work here, before they start work. Interestingly, the first point that has been lost on many of us is that Governments Right to work checks: an employer’s guide makes it quite clear that an employer must not discriminate against any individual or group when applying the right to work checks -so you must go through the same process for every potential worker, John Smith or Vladimir Putin – it is discriminatory to not apply the same checks to all.
The Home Office Right to Work Checklist identifies numerous documents from three lists as being acceptable proof - but if the aforementioned John Smith (or indeed Vladimir) is a UK citizen then you just need to see and keep a copy of their passport or Birth certificate - that’s pretty much it for UK citizens.
If the individual has been granted the right to live and work here under the EUSS he will have a “share code” that you can use for confirmation.
There are a number of other options that cover certain individuals and circumstances – for instance the new rules do not apply to Irish citizens, and there are a number of other exceptions – see the technical guide for specific details.
