Following last week’s developments, the UK is now legally set to leave the EU on 31 October 2019 unless a deal can be reached before that date.

To avoid businesses getting an early Halloween fright, the Home Office has released guidance in response to the uncertainty surrounding the employment of EU nationals post-Brexit. It details how “right to work checks” should be conducted going forward.

Trick or treaty?

What is this advice, and where can I get it?

This new advice, available on the Government’s website, confirms that no alterations will need to be made to the way these checks are currently being undertaken until January 2021. This is provided they comply with existing Codes of Practice on the prevention of foreign nationals working in the UK illegally.

Essentially, organisations do not need to differentiate between EU, EEA and Swiss citizens and their family members who were residents in the UK before or after the UK leaves the EU.

Going forward, individuals who fall into these categories will be required to continue to prove their right to work in the UK as they do now, such as by showing a passport or national identity card. Alternatively, companies can now conduct checks through the use of the Home Office online service if the individual has been granted status under the EU Settlement Scheme, which has been fully rolled out and is now accepting applications.

What are my options?

If you do choose to pursue this option, you should remember that employees cannot be made to undertake an online check. In addition, in order for organisations to use this service, they must obtain the date of birth and unique sharing code for the person in question. Any checks done in this manner will also need to be clearly recorded.

As things currently stand, if the UK leaves the EU with a deal, EU nationals arriving in the UK prior to 30 June 2021 will be able to apply for status under the Settlement Scheme. If there is no deal, those who are already in the UK prior to the date it leaves the EU will be able to apply. Following this date, there will be a transition period until 1 January 2021, during which time European workers coming to the UK will be able to work for three months without needing to apply.

If the employee wishes to remain for longer, they will need to be granted temporary leave to remain, which will last for 36 months.

What happens after January 2021?

From January 2021, a new checking system will be introduced, but it currently remains unclear what form this will take. It is therefore advisable that employers keep fully up to date on this as it develops.

What is clear is that, despite the outcome of Brexit, all Irish citizens are to continue to have the right to work in the UK indefinitely and can prove this right as they currently do, such as through the use of their passport.

Further advice

To speak with an HR advisor for professional advice, or for any other employment law guidance, call our advice line on 0844 561 8149.

Last reviewed 16 April 2019