The Home Office has provided UK employers with further details about which actions they may take when checking the right to work of EEA nationals and their family members during the post-transition grace period from 1 January 2021 to 30 June 2021 (for further details please see "Q&A: right-to-work checks beyond 2020" and "Right-to-work checks for EEA nationals during first half of 2021").

The guidance is contained in an updated version of Right to work checks: an employer's guide, which was published on 17 March 2021. Topics covered include:

  • checking right-to-work documentation issued under the Immigration Rules; and
  • carrying out retrospective right-to-work checks for existing employees.

The key points to note include the following:

  • The Home Office has acknowledged that employers may want to:
    • ensure the stability of their workforce during the grace period; and
    • help employees to obtain the appropriate immigration status that they need to be able to work in the United Kingdom beyond the grace period.
  • Employers are advised that they may invite individuals who have been granted status under the EU Settlement Scheme or the post-Brexit immigration system to evidence their right to work using the Home Office online service. However, during the grace period, employers cannot insist that individuals prove their right to work using the online service.
  • Employers are not required, but are allowed, to carry out retrospective right-to-work checks on existing EEA national and EEA family member employees, as long as these are conducted in a non-discriminatory way in accordance with the Home Office's code of practice on avoiding unlawful discrimination while preventing illegal working.
  • If EEA nationals (and presumably their family members, although this is not stated in the guidance) cannot provide documents in a retrospective check to the standard required to establish a statutory excuse, employers should contact the Employer Checking Service.
  • From 1 July 2021, the requirements for right-to-work checks for EEA nationals will change and evidence of UK immigration status will be required using the Home Office's online service, subject to limited exceptions.
  • New guidance on the requirements for right-to-work checks from 1 July 2021 will be published by the Home Office ahead of this date.

For further information on this topic please contact Andrew Osborne, Li Xiang or Tom McEvoy at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.