The UK left the EU on 31 January 2020. There was a “transition period” until 31 December 2020. During the transition period, free movement effectively continued between the UK and the EU, with EEA and Swiss citizens and their family members who were legally residing in the UK in accordance with EU regulation continuing to be able to do so.

 

EEA and Swiss citizens residing in the UK by 31 December 2020 can apply for immigration status under the EU Settlement Scheme. Those who have resided in the UK lawfully for five years will be eligible for “settled status” and will be free to live and work in the UK indefinitely. Those EU citizens who have resided in the UK for fewer than five years by the time they apply will be eligible for “pre-settled status” until they acquire the necessary five years to obtain settled status but will also be free to live and work in the UK during this time. Applications for status under the EU Settlement Scheme must have been submitted by 30 June 2021. Failure to acquire settled status or temporary status will render people “illegal immigrants” and subject to removal.

 

EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens (see Legal update: New points-based immigration system announced).

 

Employers could continue to confirm an EEA national’s right to work using only their passport or national ID card until 30 June 2021. From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

 

Employers are not expected to differentiate between EU citizens who arrived in the UK before 11.00 pm on 31 December 2020 (under EU free movement) and those who arrived from 1 January 2021 (under UK immigration laws). There will also be no mandatory requirement for employers to undertake retrospective checks on EU citizens employed before 30 June 2021.

Provided a right to work check is undertaken in line with right to work legislation and guidance, and the employer does not know or have reasonable cause to believe the employee has no right to work, the employer will maintain a continuous statutory excuse against a civil penalty if the employee is subsequently found to be working illegally

 

Where a right to work check has been conducted using the online service, the information is provided in real-time directly from Home Office systems and there is no requirement to check any of the documents listed below.

 

List A – acceptable documents to establish a continuous statutory excuse

 

  • A passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
  • A passport or passport card (current or expired) showing that the holder is a national of the Republic of Ireland.
  • A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom indefinitely.
  • A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  • A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK.
  • A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
  • A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.
  • A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

 

List B Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of leave:

 

  • A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
  • A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question.
  • A current document issued by the Home Office to a family member of an EEA or Swiss citizen, and which indicates that the holder is permitted to stay in the United Kingdom for a time limited period and to do the type of work in question.
  • A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.
  • A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008, on or before 30 June 2021.6. A frontier worker permit issued under regulation 8 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.
  • A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

 

List B Group 2 – documents where a time-limited statutory excuse lasts for six months

 

  • A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • A document issued by the Bailiwick of Jersey or the Bailiwick of Guernsey showing that the holder has made an application for leave to enter or remain under Appendix EU to the Jersey Immigration Rules or Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
  • A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

 

It is important that were time limited rights are in effect, to diarise a recheck in good time and to take appropriate action promptly where needed.

 

For immigration queries, please contact the home office directly.