Employers – beware of the new employers’ duties regarding checking immigration status of EEA citizens

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Employers have a legal duty not to employ any illegal workers. Following the expiration of the EU Settlement Scheme, it is worthwhile employers familiarising themselves with their new duties.

There are serious penalties for employers who negligently or knowingly employ an illegal worker. An employer can face a civil penalty of a fine up to £20,000 per employee where they were found to have negligently employed an illegal worker. An employer who is found to have knowingly employed an illegal worker (or if they ought reasonably to have known) can face criminal sanctions; a prison sentence of up to five years and/or an unlimited fine. Therefore it is vital that employers are aware of their duties. Employers must do the following:

Carry out right-to-work checks;
Keep accurate records of the checks that have been carried out;
Monitor and repeat any checks as required; and
Make a report to the Home Office should the need arise.

From 1 July 2021, all EU, EEA and Swiss citizens are no longer able to use their passport or national identity card to prove their right to work.

There is no longer a requirement for an employer to carry out retrospective checks in relation to an EEA citizen who was hired on or before 30 June 2021. If an employer has reason to suspect that a worker no longer has the right to work in the UK, they should do the following:

Advise the employee to make an application to the EU Settlement Scheme within 28 days and provide the employer with a Certificate of Application;
Following receipt of this certificate, the employer should carry out a check with the Home Office Employer Checking Service, to ensure an application has been made;
Where an application has been made, the employer will receive a Positive Verification Notice, which creates a statutory excuse and bars any civil penalty for 6 months;
If the application has not yet been processed and the Positive Verification Notice is due to expire, the employer should carry out a further check with the Home Office Employer Checking Service, who will issue a subsequent Positive Verification Notice for another six months;
If the application has been refused, the employer should take steps to terminate the employment of the individual concerned.

These transitional measures are in place until 31 December 2021, and they only apply to EEA nationals hired on or before 30 June 2021. From 1 July 2021, if a prospective employee has not made an application before the 30 June deadline and cannot provide evidence of alternative immigration status then they should not be employed.

It is also important that employers do not discriminate against anyone whilst carrying out these checks. For example, an employee with time-limited permission to be in the UK should not be treated less favourably than workers with unlimited leave, because this would amount to direct discrimination. Employers should also be careful to avoid indirect discrimination, which would occur when a provision, criterion, or practice would put one group of people at a disadvantage compared with others. For example, a requirement that any applicant should have lived in the UK for 3 years would indirectly discriminate because some migrants will not have lived in the UK for that amount of time.

The best way to avoid discrimination is to treat all potential employees in a fair, equal manner at every stage of the recruitment process.

If you would like to discuss the above in more detail or if you require any employment law advice, please do not hesitate to contact a member of the Employment Law Team.

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