Introduction
Q&A


Introduction

The end of the transition period and freedom of movement is only a few weeks away. Although employers are busy getting to grips with the post-Brexit immigration system, they are also concerned about what changes they must make to their right-to-work (RTW) check procedures and when. This Q&A – based on questions asked by attendees of a recent webinar – answers the key questions on this matter.(1)

UK employers must ensure that their employees have the RTW in the United Kingdom before they start work and throughout their employment. Conducting a RTW check properly will shield employers from liability for civil penalties if they are found to have inadvertently employed somebody who has no RTW in the United Kingdom. The Home Office has confirmed that RTW check procedures will not change until after 30 June 2021, when the post-transition 'grace period' for applying under the EU Settlement Scheme (EUSS) ends. There will be no requirement for retrospective checks on EEA nationals or their family members who start work before this date. However, there is a risk that employers will be prosecuted if they know or have reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant RTW check. This could happen where an EEA national enters the United Kingdom for the first time as a visitor after the end of the transition period or where an existing staff member fails to apply under the EUSS on time.

In this Q&A, unless otherwise indicated, the term 'EEA national' means nationals of countries included in the European Economic Area and Swiss nationals. It excludes Irish nationals, who are already considered 'settled' in the United Kingdom. Irish nationals can, but are not required to, apply under the EUSS and, unlike other EEA nationals and their family members, will continue to be able to rely on their Irish passport for the purposes of RTW checks after 30 June 2021.

Q&A

An employer has a Bulgarian national on its payroll who has been furloughed since March 2020. Due to the COVID-19 pandemic and being furloughed, they went to Bulgaria to be with their family. They will continue to work for the employer in 2021. If they are in Bulgaria on 1 January 2021, will they need a visa to continue working for the employer?
Unfortunately, the answer to this question is not straightforward. If the employee has been outside the United Kingdom for more than six months in a 12-month period (which appears to have been the case if they left the United Kingdom in March 2020 and have not returned), the continuity of their residence will normally have been broken. However, there are exceptions for:

  • single periods of absence of up to one year, provided that this is for an important reason. 'Important reasons' are not defined exhaustively, but accepted examples include:
    • pregnancy;
    • childbirth;
    • serious illness;
    • study;
    • vocational training; or
    • an overseas posting; and
  • compulsory military training of any length.

The immigration minister recently indicated in a letter to the 3million campaign group that serious illness and being quarantined to protect public health would be accepted as important reasons. He also stated that guidance will be published shortly for EUSS applicants who have been affected by illness or travel restrictions due to COVID-19. The guidance has yet to be published. Based on the Immigration Rules and guidance that has been published to date for individuals with limited leave in other immigration categories and for naturalisation, there is a considerable risk that such an employee's circumstances may not fall within the guidance if they travelled to and have remained in Bulgaria by choice. Irrespective of whether the employee has already obtained pre-settled status under the EUSS, the safest course of action would be for them to return to the United Kingdom by 31 December 2020 to start a fresh period of residence and apply (or reapply) for pre-settled status by 30 June 2021. This would avoid the need for an application to be made under the new immigration system or for the employee to be ineligible for settled status due to having broken the continuity of their residence.

There is currently a delay in processing biometric residence permits for new arrivals into the United Kingdom, meaning that their Entry Clearance visa may expire before employers can check their biometric residence permit. What should employers do in this situation – for example, should they use the Employer Checking Service?
Yes, employers should obtain the employee's authority to request a verification notice from the Employer Checking Service (ECS) and make the ECS request before the expiry of the person's short-term entry clearance vignette. This will provide employers with a statutory excuse against liability for a civil penalty for six months from the date on which they receive a positive verification notice from the ECS.

Must employers take a screenshot of the video call and the person holding up their documents or is this an optional, good-to-have piece of evidence on top of the check and the printed name with the adjusted sentence?
This is not mandatory; it is a suggestion for good practice.

Must employers conduct a RTW check on day one if the hire commences their role from aboard as they cannot travel due to COVID-19? In other words, must the RTW check be conducted only when they are on UK soil?
The UK RTW check should be conducted before workers commence any work for employers while they are physically in the United Kingdom. In the meantime, if workers start to work for a UK employer remotely from another country, they must have the RTW in the country in which they are physically located. There may be tax and other considerations if there is remote working abroad.

How should employers communicate the immigration changes to employees?
Employers should use multiple channels to raise awareness of the immigration changes, including by:

  • posting information on their intranet;
  • putting information on company screensavers; and
  • sending out a company communication via email.

Awareness should also be raised with employers' UK staff and staff in any offices abroad, particularly in the European Economic Area or Switzerland.

The wider the communication, the more staff will have an opportunity to take action. There are some people who have left the United Kingdom in the past five years who may be unaware that they are eligible to apply for settled status and could be living anywhere in the world. There are also people who, in addition to having rights under free movement law, have UK immigration permission and are unaware that they can apply under the EUSS.

A recent report by the Migration Observatory at the University of Oxford cites lack of awareness as being a key concern for the ability of EEA and Swiss nationals and their family members to secure their UK residence rights. Any efforts that employers can make to address this are likely to make affected employees feel valued and will reduce the risk of them losing their rights.

If existing employees who are EEA or Swiss nationals (or a family member of an EEA or Swiss national) cannot show proof of their RTW on 1 July 2021, can employers automatically dismiss or suspend them without pay? If so, how long should employers suspend them for to allow them time to obtain proof?
Employers should seek legal advice in this scenario. There are some employment law risks in automatically dismissing or suspending employees who employers suspect may have no RTW in the United Kingdom. Employers must remember that there is a difference between actually having no RTW in the United Kingdom and being unable to prove a RTW in the United Kingdom. In many cases they are one and the same, but not always.

Risk of unfair dismissal claim
Employees with more than two years' service have the right not to be unfairly dismissed. This means that employers must identify a potentially fair reason for dismissal and follow a fair process. 'Illegality' is a potentially fair reason for dismissal, which would apply if somebody definitely has no RTW. However, employers must still follow a fair process. Further, if employees happened to have a RTW all along, employers will be unable to rely on illegality as the reason for dismissal (although employers may be able to rely on "some other substantial reason" if they genuinely believe that the employee has no RTW). Key to the fairness of the dismissal will be the process that employers follow – they must conduct an investigation into the matter and come to their own, informed conclusion, including by speaking to the employee and using the ECS. Employers must also ensure that the reason for dismissal stated in the termination letter is carefully articulated. If they dismiss unfairly (eg, by failing to conduct a full and proper investigation before arriving at their conclusion), the employee may bring a successful claim for unfair dismissal.

Risk of wrongful dismissal claim (ie, a claim for notice pay)
If employers dismiss without notice on the basis that the employee had no RTW, but they did have the RTW all along, the employee could bring a claim for their notice pay. (It is also arguable that the employee is entitled to notice pay anyway unless they have tried to conceal the fact that they have no proof of their RTW.)

Risk of race discrimination claim
Employees could claim that employers are treating them less favourably than they would, for example, a British employee or they could complain that the way that the employer handled the situation amounted to harassment. Employers must treat all employees who need to show proof of their RTW in the same way.

Suspension is unlikely to be of much assistance. Employees would remain employed while suspended, so the risk of continuing to employ an illegal worker would not be avoided by simply suspending them. Suspension is generally appropriate only where there is a reason why the employee should not be in the workplace (eg, due to serious misconduct). Any suspension would also need to be paid, unless the contract allows for suspension without pay.

For EEA nationals where employers already have RTW proof (thereby confirming their nationality), can employers go out to those people specifically and give a targeted email offering support knowing that they must ensure that they get settled status?
Yes, however a staged approach is best (for further information please see "If employers need not conduct retrospective RTW checks for EEA citizens to verify whether they have settled status, from 1 July 2021, how can employers determine whether employees have the RTW?").

If employers have nationality or citizenship data in their HR management system, can they send out targeted communications?
Employers should not rely on nationality or citizenship data in isolation as this can be incomplete or otherwise prone to error.

If employers recruit new starters (EEA or Swiss citizens) after 1 January 2021 who were not living in the United Kingdom by 31 December 2020, can employers still rely on their EEA passport until the end of the grace period or will the new January 2021 immigration rules apply?
Employers can rely on such employees' EEA passports for the purpose of RTW checks; however, EEA or Swiss nationals who enter the United Kingdom for the first time after 11:00pm on 31 December 2020 will have no RTW unless one of the following applies:

  • they have an EUSS family permit;
  • they have a RTW under the Immigration Rules; or
  • they are exempt from immigration control (eg, as a family member of a diplomat).

The government's current position on RTW checks carries the risk that some people will be employed unlawfully. Although further guidance is expected to be forthcoming, no specific release date has been confirmed.

Must employers do retrospective RTW checks on all EEA national employees after 1 July 2021 or just on those who join between 1 January 2021 and 30 June 2021?
Retrospective RTW checks are not required for employees whose work commences on or before 30 June 2021.

When hiring EEA nationals from 1 January 2021, should employers ask them to show that they entered the United Kingdom by 31 December 2020?
Unfortunately, this will not provide an accurate indication of workers' RTW. For examples of where EEA or Swiss nationals may have a RTW despite not having entered the United Kingdom by 11:00pm on 31 December 2020, please see "If employers recruit new starters (EEA or Swiss citizens) after 1 January 2021 and who were not living in the United Kingdom by 31 December 2020, can employers still rely on their EEA passport until the end of the grace period or will the new January 2021 immigration rules apply?".

Can employers engage freelancers based in the European Union from January 2021 onwards?
Please see "Must employers conduct a RTW check on day one if the hire commences their role from aboard as they cannot travel due to COVID-19? In other words, must the RTW check be conducted only when they are on UK soil?".

With regard to dismissal, in 2018 and 2019 the Home Office refused indefinite leave to remain applications on the basis of incorrect tax returns. Later, the Home Office admitted that it had made a mistake and that these applications should not have been refused. Where do employers stand in this situation?
This would depend on the facts of the case in question. In the absence of more detail, a definitive answer cannot be given. Employers should seek legal advice in such cases.

For some of the employment law risks associated with dismissing employees on the basis that they cannot prove that they have the RTW, please see "If existing employees who are EEA or Swiss nationals (or a family member of an EEA or Swiss national) cannot show proof of their RTW on 1 July 2021, can employers automatically dismiss or suspend them without pay? If so, how long should employers suspend them for to allow them time to obtain proof?". It may be possible to defend an unfair dismissal claim in the event of a genuine but mistaken belief that an employee had no RTW in the United Kingdom. However, that will depend on the facts of the case in question. In many cases, the quality of the employer's investigation into the employee's immigration status will be critical in determining the fairness of a decision to dismiss. The Home Office does, unfortunately, make mistakes. However, employers seeking to justify their decision to dismiss will want to show that they conducted their own investigation into the matter and reached a fully informed conclusion.

Can employers still ask whether candidates have the RTW in the United Kingdom in the application process?
This is a thorny and complex area. Employers should seek tailored legal advice because the answer will depend on how they phrase the question and what they do with the information provided. It is possible – in some circumstances – to ask candidates if they have the RTW in the United Kingdom during the recruitment process. However, there is a risk of race discrimination. If the question is benign, sensitively phrased, asked of all candidates and appropriately processed, the risk is more limited. However, employers have been found liable for race discrimination for using a negative answer to 'sift' candidates or where a candidate's inability to prove that they have the RTW in the United Kingdom formed part of the decision to reject their application. An employment tribunal will be concerned with whether candidates were rejected on merit or whether they were rejected because of their immigration status.

If employers have no sponsorship licence, can they refuse candidates who have no RTW?
Employment case law in this area suggests that not holding a sponsor licence is not a good enough reason to refuse to employ a candidate without the RTW in the United Kingdom. For some of the risks involved in asking about candidates' RTW, please see "Can employers still ask whether candidates have the RTW in the United Kingdom in the application process?". Case law states that a decision to reject an application on the basis that the candidate has no RTW may well be discriminatory and this means that a decision to reject on the basis that the employer has no sponsor licence may also be discriminatory. The safest approach is for employers to do a full merits assessment of candidates and only at the end of the process decide whether they wish to try to sponsor a candidate. The key is to select (and be seen to select) employees based only on their suitability for the role on offer. The approach of using nationality (or RTW in the United Kingdom) as a determinative factor does open the door to race discrimination claims. Note that a failure to observe the Home Office's code of practice may be taken into account by a tribunal in deciding whether there has been discrimination.

Can employers write in a job ad that "this role is not eligible for sponsorship", especially when they know that it would not carry enough points?
Please see "Can employers still ask whether candidates have the RTW in the United Kingdom in the application process?" and "If employers have no sponsorship licence, can they refuse candidates who have no RTW?". A suggestion that employees will automatically be rejected for sponsorship-related reasons may be found to be discriminatory. Of course, some roles may be ineligible for sponsorship under the United Kingdom's points-based immigration system; however, pre-emptively advertising this fact in job ads may create an unnecessary degree of legal risk. The approach suggested by employment case law is that employers should make their decision based on merit and only at the end of the process consider whether sponsorship is possible.

If employers need not conduct retrospective RTW checks for EEA citizens to verify whether they have settled status, from 1 July 2021, how can employers determine whether employees have the RTW?
Although employers need not conduct retrospective RTW checks, they should follow a staged approach.

Before the end of the transition period, employers should send company-wide communications flagging that free movement will end on 11:00pm on 31 December 2020 and raising awareness of the EUSS, including the deadline to apply. Follow-up firm-wide communications could also be sent around the end of March 2021.

For employees who have relied on an EEA or Swiss passport or national ID card (other than Irish nationals) and family members whose RTW document has been issued based on EU law residence rights:

  • between the end of April 2021 and 30 June 2021, employers should invite (but not require) affected employees to provide proof of their RTW under the EUSS or the Immigration Rules or as an exempt person (eg, frontier workers); and
  • on or immediately after 1 July 2021, and subject to further guidance being issued by the Home Office, employers should request proof of RTW (as above) or of an application having been made under the EUSS before 1 July 2021.

If job applicants say that they have no RTW and the employer mentioned in the ad that they cannot sponsor the role, do employers have an obligation to short list them and interview?
Please see "Can employers still ask whether candidates have the RTW in the United Kingdom in the application process?" and "Can employers write in a job ad that "this role is not eligible for sponsorship", especially when they know that it would not carry enough points?". A decision to reject candidates outright on the basis of immigration status may well be discriminatory. However, legal advice should be sought for a more detailed discussion about how to navigate these issues.

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

Endnotes

(1) This article is based on a recent webinar, available here.