Employers Duty To Check EU Right To Work

There has been some confusion lately about the right to work checks employers need to make after Brexit.

The current requirement is for potential employees from the European Economic Area (EEA) to produce an official document showing their nationality – usually a national passport or identity card. The EEA comprises all the EU countries together with Iceland, Liechtenstein and Norway (and this rule includes Switzerland although not part of the EEA). But after Brexit will employers have to check whether the individual is a new arrival or already established in this country?

The Minister for Immigration, Caroline Nokes, gave what is hoped to be the final answer on this question in the House of Commons on 5 November 2018. “Employers will of course continue to need to check passports or ID cards – as they do now for EU citizens, and indeed for British citizens, when making a new job offer,” she said. “We will not be asking employers to differentiate even if there is no deal.”

After Brexit, nationals from the remaining EU countries can apply for “settled status” until the deadline of 30 June 2021 (but check the GOV.UK website for updates – further details below). This will allow those who arrive up to 31 December 2020 to continue living here after June 2021. Apparently this scheme will be open by 30 March 2019 although the legislation has yet to go through Parliament and a pilot scheme is not faring too well.

In order to obtain “settled status” it is thought EU nationals (the situation is not clear about nationals from Norway, Iceland, Liechtenstein or Switzerland) will have to provide proof of identity together with proof of residence for five years. For those with less than five years residence a “pre-settled status” may be conferred, presumably followed by another application once the five year threshold has been reached.  

None of this applies to Irish nationals who of course have their own right to reside and work in the UK, or to anyone with indefinite leave to remain or enter the UK (although they can apply for settled status if they choose).   

In the meantime employers and employees should monitor the Settled and Pre-Settled Status for EU Citizens and Their Families page of GOV.UK where it is possible to sign up for email updates. And employers should make sure any EU employees are up to date with all requirements. Employees from Norway, Iceland, Liechtenstein or Switzerland (and those who employ them) will have to keep a particularly careful eye on this page of the GOV.UK website.