BREXIT – compliance for UK Businesses
12th January, 2021
All employers are placed under a positive duty to prevent illegal working and must avoid unlawful discrimination when conducting the right to work checks.
Right to work checks must be carried out prior to a person commencing employment for you, and a follow-up should be done for all individuals that are subject to immigration time restrictions.
EEA and Swiss nationals during the EU-Exit grace period
Free movement ended on 01 January 2021, which means that EU, EEA, and Swiss nationals (and their family members) must qualify for right to reside and work in the UK under either the EU Settlement Scheme or the new points Immigration system.
You may accept passports, photo national ID cards, registration certificates, or a document certifying permanent residence in the UK from EU, EEA and Swiss nationals until 30 June 2021. EEA and Swiss nationals do not need to provide evidence of applying under the EU Settlement scheme if they were employed on or before 30 June 2021.
Checks after the EU-Exit grace period
Although employers are normally required to carry out follow-up checks, there is currently no requirement for employers to perform retrospective checks on EEA and Swiss nationals who are employed during the EU-Exit grace period. Employers will maintain a statutory defence against a civil penalty if it can be shown that the initial right to work checks were carried out in tune with the requirements.
Employers will be able to contact the Employer Checking Service to establish a statutory defence against a civil penalty where an EEA or Swiss national is unable to provide an acceptable document because they have an outstanding application with the Home Office under the EU Settlement Scheme or the new points based system.
Penalties for employing illegal workers or failure to carry-out right to work checks
A penalty of up to £20,000 per worker may be imposed as a starting point, and criminal proceedings may be initiated with a maximum sentence of 5 years imprisonment.
If you would like further advice or require bespoke training for your HR department, please contact Ikram Malik.
Business Immigration Partner
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