Immigration law expert Sohan Sidhu, from Ellisons Solicitors, warns businesses to take care over right to work checks

The Home Office set up the EU Settlement Scheme (EUSS) for EEA nationals living in the UK to apply for either Settled or Pre-Settled Status to continue living in the UK.

EEA nationals were given a period of six months after the end of the Brexit transition period (January 1, 2021, until June 30, 2021) to apply through the EUSS if they wanted to continue living in the UK. During the transition period, employers were able to continue accepting European passports as evidence of the right to work in the UK.

However, from July 1, 2021, an EEA national commencing employment in the UK has to prove that they have the right to work just as any non-EEA national would be required to do so. Producing a European passport is no longer enough.

The first step is for the EEA national to obtain a share code to prove their Settled or Pre-Settled Status in the UK and, with the share code, the employer can then conduct an online right to work check.

Employers have a legal responsibility to prevent illegal working and if they fail to conduct proper right to work checks in accordance with the Home Office regulations, then they are exposing themselves to both civil and potentially criminal liability. If the employer is in possession of a Home Office Sponsor Licence then that can be downgraded or suspended and this can have dramatic consequences on any other migrants which the business is sponsoring under its licence. The Home Office can also name and shame a business which has been issued with a civil penalty on the Home Office website and there can therefore be issues of reputational damage.

It is, however, important to note that a retrospective check is not required to be undertaken on an EEA national if they started their employment with their employer up to and including June 30, 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the checks which they undertook previously were in accordance with the Home Office guidance that applied at the time they made the initial right to work check.

-- For advice on this or any other immigration matter, contact Sohan Sidhu by email at Sohan.Sidhu@Ellisonssolicitors.com or by telephone on 01284 763333