Prevention of Illegal Working - Ready for 1 July?

The Home Office has recently published a new code of practice (effective from 1 July 2021) on preventing illegal working.

Other than updating some housekeeping rules around conducting a "right to work" check and additional guidance around civil penalty, the focus is to mark how employers will need to check the status of their EEA employees in the UK from 1 July 2021.

1 July 2021 is an important date for the UK and EU/EEA citizens in the UK as the six-months grace period for all EEA nationals (and their family members) to apply for status under the European Union Settlement Scheme ends.

It is crucial for those who intend to employ EEA workers after 1 July to adjust their relevant "right to work" practice. Employers can no longer assume that there is a right to work for an EEA national when presented with an EEA national's passport.

From 1 July 2021, employers should ensure that those new hires who are EEA nationals have either applied for status under EUSS or have been granted status under the EUSS or have other forms of permission to work in the UK.

On some occasions, the quickest (and sometimes, the only way) to conduct a right to work check will be online via the Home Office "right to work check" portal. New/Potential hires will need to share a code with the potential employer to view their status. Potential/new hires can access their details and share their code via the link here.

There are occasions, especially during the early part of July and August, that new/potential hires will indicate that they have submitted an application under the EUSS but have yet to receive a response. Others may have applications/appeals pending in another visa category but have yet to receive a decision.

In this case, the employer will need to contact the Employer Checking Service, obtain a 'Positive Verification Notice' which will provide you with a defense against a civil penalty enabling an employer to hire or extend the person's contract for six months from the date specified in the Positive Verification Notice.

Employer Checking Service generally takes around five working days to respond about an employee's potential right to work. If the Employer Checking Service does not respond within the five working days, the Home Office has indicated that they will send (from 1 July 2021) "an automatic response will be sent to the Employer informing them that they can hire the prospective employee". Employers should note to retain any Home Office Employer Checking Service response to maintain a statutory excuse against a civil penalty".

Employers should note that if the Home Office subsequently confirms the individual has no right to work in the UK, the Employer must seek to terminate the employment.

Right to work check is only part of the plethora of duties that an employer needs to follow when hiring overseas nationals. Employers should also seek to keep up to date with the latest changes and guidance, especially for licensed sponsors.

Shores & Legal are experienced and expert immigration partners for your business and personal immigration requirements. We help companies identify their immigration compliance gaps and help businesses set up and operate an effective immigration compliance programme. If you wish to discuss your UK immigration requirements, contact us at +44 (0) 207 097 6778 or info@shoreslegal.com.