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The Home Office has released additional guidance for employers on employing EU, EEA and Swiss citizens in the U.K. after the end of the Brexit transition period.
Background: The U.K. left the European Union on Jan. 31, triggering a transition period ending on Dec. 31. Freedom of movement will end Jan. 1, and the U.K. will have a new immigration system, applicable to both European and non-Europeans alike.
While EU, EEA and Swiss citizens already living in the U.K. by the end of the transition period are able to secure their status in the U.K. using the EUSS (with a deadline of June 30, 2021), those arriving from Jan. 1 will have to apply under the new immigration system.
Analysis & Comments: The new guidance is welcome, as it provides further clarity on a range of right to work obligations for businesses employing European nationals from Jan. 1.
The new guidance also raises a questions, however, surrounding what documentation can and cannot be requested, particularly for new European hires from Jan. 1.
It is clear that any EU, EEA or Swiss national who is already employed in the U.K. by Dec. 31 will not require a retrospective right to work check. While these individuals are nonetheless required to apply under the EU Settlement Scheme (“EUSS”) by June 30, 2021, employers cannot require them to demonstrate they have made the application.
For new hires from Jan. 1, it is clear than any EU, EEA or Swiss citizen not resident in the U.K. will require sponsorship under the new immigration system prior to starting employment.
For new hires of any European nationals already residing in the U.K., while these individuals may have already applied under the EUSS (and are required to do so by June 30, 2021), employers cannot require them to show any status granted under the EUSS until after June 30, 2021.
The guidance is therefore very clear on the requirements for right to work checks on EU, EEA and Swiss new hires between Jan. 1, 2021 and June 30, 2021. Employers can check the job applicant’s right to work as they do now, by viewing either the passport or national identify card, or conducting an online check.
Crucially, employers cannot discriminate and refuse to employ an EU, EEA or Swiss national on the basis they have not yet obtained a status under the EUSS until after June 30, 2021.
Further, employers can be assured they will have a full statutory defense against any illegal employment even from just the passport copies for this population. Retrospective checks are not required on existing employees.
Nonetheless, employers should still be encouraged to provide regular communications to their employees to remind them to apply under the EUSS by June 30, 2021. In fact this approach is encouraged by the Home Office, who have provided an “Employer Toolkit” to provide signposting to businesses to help support their European citizen employees to stay in the U.K.
While the employer will have followed all the right to work guidance to establish a statutory defense should any employee not have made the application by June 30, 2021, the individuals in question nonetheless require the status to continue lawfully residing in the U.K. Apart from the right to work, holding status under the EUSS is also required for accessing the NHS, schooling, travelling in and out the U.K., banking and renting a property, for instance.
As a final consideration, it remains to be seen if any retrospective checks on holding a status under the EUSS will be required after June 30, 2021, in particular for those individuals hired between Jan. 1 and June 30, 2021. Further guidance is expected to be released by the Home Office as we approach the end of the ‘grace period’ ending on June 30, 2021.
In the meantime, employers can be reassured that in fact the requirements for right to work checks on European nationals from January 2021 are perhaps less onerous than may have been anticipated. Indeed, in effect the right to work check process essentially remains unchanged until after June 30, 2021, notwithstanding the fact new European hires that are not resident in the U.K. will require working permission under the new immigration system.
Rest of World Source: Deloitte. Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited (“DTTL”), its global network of member firms, and their related entities. DTTL (also referred to as “Deloitte Global”) and each of its member firms are legally separate and independent entities. DTTL does not provide services to clients. Please see www.deloitte.com/about to learn more. Deloitte Legal means the legal practices of Deloitte Touche Tohmatsu Limited member firms or their affiliates that provide legal services. For legal, regulatory and other reasons, not all member firms provide legal services. This includes Deloitte Tax LLP in the United States which does not provide legal and/or immigration advice or services. This communication contains general information only, and none of Deloitte Touche Tohmatsu Limited, its member firms or their related entities (collectively, the “Deloitte network”) is, by means of this communication, rendering professional advice or services. Before making any decision or taking any action that may affect your finances or your business, you should consult a qualified professional adviser. No entity in the Deloitte network shall be responsible for any loss whatsoever sustained by any person who relies on this communication. © 2020. For information, contact Deloitte Touche Tohmatsu Limited.
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