Right to work checks for EU nationals after Brexit

The government has published new guidance which confirms that, once the UK leaves the EU and whether this is with a deal or not, there will be no change to the way EU, EEA and Swiss citizens prove their right to work until 1 January 2021. Irish citizens will continue to have the right to work in the UK and prove their right to work as they do now, for example by using their passport.

This means that:

• employers should continue to conduct right to work checks on all prospective employees, regardless of their nationality, to establish the statutory excuse against payment of a civil penalty for employing illegal workers
• when carrying out such checks, employers will not need to distinguish between EU, EEA and Swiss citizens and their family members who were resident in the UK before or after the UK leaves the EU
• until 1 January 2021, EU, EEA and Swiss citizens will continue to be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card. Alternatively, they may choose to use the Home Office online checking service if they have been granted status under the EU Settlement Scheme, but employers cannot require them to do so. Employers can view the prospective employee’s status through the Home Office online checking service once the individual has provided their date of birth and unique share code
• employers do not have to check whether existing employees have been granted status under the EU Settlement Scheme
• as is currently the case, in order for an employer to establish the statutory excuse when employing the non-EU, EEA or Swiss family member of an EU, EEA or Swiss citizen, the prospective employee will need to show Home Office issued documentation. They may choose to use the Home Office online checking service if they hold a biometric residence card or have been granted status under the EU Settlement Scheme.

From 1 January 2021, new guidance will apply for right to work checks and this will be issued by the government in due course.

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