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Right-to-Work Background Check UK, Now and Post Brexit

Two red UK pre-brexit passports on a table

Best estimates suggest that around 5% of UK Oil and Gas workers are EU nationals, with many of these expatriates being highly skilled. While there isn’t a large concern about losing these EU workers,  post Brexit, UK Oil and Gas companies are likely to have an increased administrative and financial burden to retain these workers throughout the unsettled period.  

One area of HR administration that will be impacted, as EU worker’s residency status goes through a post-Brexit re-examination, is the UK right-to-work background checking process. However, given the fact that right-to-work background checking requirements have changed significantly over recent years, your background-checking may, in any case, need immediate attention.

Key changes to right-to-work UK background checks since 2014

Back in May 2014 the government amended the Immigration (Restrictions on Employment) Legislation, making the following changes to the right-to-work UK background checking process:

  • They reduced the range of documents that can be used as evidence of right-to-work.
  • Employers now need to record exactly when they did the right-to-work background check.
  • There is no longer a requirement for an employer to take a copy of the front cover of the passport.
  • There is no need to perform annual ‘follow up’ checks at minimum 12 month intervals on employees with a temporary right-to-work. It just needs to be done at the point of expiry of the right to work.
  • The maximum penalty for employing legal workers increased from £10,000 to £20,000 per worker, and the maximum prison sentence increased from 2 to 5 years. 

Right-to-Work Background Check as it stands today

Employers have a statutory duty to verify every new employee’s right-to-work. This is done by viewing the appropriate documentary evidence. As of today, pre-Brexit, if the person has a UK or EU passport, they are normally entitled to work in the UK. If the person is from outside the EU you’ll not only need to verify their right to work in the UK, but also their right to to remain in the UK. 

But, just seeing the passport and documents is not enough, employers need to follow statutory due process when doing this right to work background check. You need to check the document in person and check the photo matches the applicant, and that the document is not out of date. Then you need make a clear copy of it, ensuring that the expiry date, personal information, and any endorsements are visible. Alternately, if you’ve been given a share code you can do a right-to-work online background check.

Right-to-work background check UK post-Brexit

Non-EU Citizens

Right-to-work background checks for Non-EU citizens shouldn’t change as a result of Brexit as these workers have never been under the remit of EU Law

EU Passports will still be valid evidence of right-to-work post-Brexit until 2021

Latest information from the government suggests that there will be a transitional grace period until 30 June 2021 where EU nationals can continue using EU passports as proof of right to work in the UK. In the event of a no-deal this date will be 31 December 2020. 

A new ‘Settled Status’ will be valid evidence of right-to-work post-Brexit;

Employers should become immediately acquainted with a new form of residency and right-to-work status post-Brexit, known as settled status. EU Citizens (apart from a few exceptions) currently living in the UK before official Brexit will need to apply for settled status to continue living and working in the UK. With settled status, theoretically a worker can legally work in the UK irrespective of any future changes to the UK immigration system.

Watch out for European Temporary Leave To Remain Status

A new European Temporary Leave To Remain status, (lasting 36 months) will start emerging too, post-Brexit, as evidence of right-to-work in the UK. This can be used by workers if no other visas are available. 

When background checking non-British but EU employees post-Brexit, employers will need to see and verify one or more of the following documents and so should familiarize themselves with them and ensure they are incorporated into their right-to-work background checking process.

  • UK/EU Passport
  • Settled Status Endorsement in passport/associated documents
  • European Temporary Leave to Remain

This is a constantly changing picture, and for the most up to date and accurate information on UK right-to-work background checks, please visit the government website.

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