On 19 March 2018 the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community was published.
The draft agreement confirms what EEA nationals should expect, if they are in the UK now and remain here throughout the transitional period from 29 March 2019 to 31 December 2020.
Right to remain
Those who are legally residing in the UK in accordance with the EEA Regulations can continue to do so. The Home Office advises that no action needs to be taken at present. Workers, the self-employed, those who are self-sufficient, students or those who have retained these rights, and their family members, will be protected by the draft agreement.
Right to work
At present, it is not mandatory for an EEA national to hold documentation certifying residence or permanent residence in the UK. However, we are seeing an increasing number of employers asking their European workers for proof of their right to reside and work in the UK. This is behaviour is likely to have arisen as a result of the Home Office’s power to impose a duty on employers to prevent illegal working.
Generally, all employers are obliged to complete ‘right to work checks’ before they employ any worker – British, European or from overseas.
Although EEA nationals are permitted to work in the UK without restrictions, employers are required to obtain proof of the claim of EEA nationality. This will usually be in the form of an EEA passport or original national identity card issued by the EEA country in which they reside. Both documents, together with registration certificates and documents certifying permanent residence are included in List A, which is an official list of acceptable documents to establish a continuous statutory excuse for employer, to avoid liability for a civil penalty which can be imposed for employing an illegal worker.
Verifying the right to work
EEA nationals, their employers and potential employers should be aware that right to work checks should be carried out before the commencement of employment. Employers are required to:
- obtain the worker’s original documents
- check the validity of the documents in the presence of the worker
- make and retain a clear copy, and record the date of the check