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Right to work – an update for employers

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Written by
Emma Bagshaw
20th October 2021
HR & Culture
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Image: Priscilla Du Preez via Unsplash

Read this update from Emma Bagshaw, Consultant Senior Solicitor at Seabury Legal Ltd, about further changes to the process for employers to ensure that employees have the right to work in the UK.

It has been a busy year for everyone managing and conducting right to work checks. Even though it hasn’t been long since the last update to List A and List B that took place in June, September saw further changes to List B and the Home Office guidance.

These changes reflect the assistance the Government is providing to those making late applications to the EU Settlement Scheme.

What’s happened?

The most important changes are as follows:

  • List B has been updated to correct two previous errors. Reference to EU Settlement Scheme applications in List B (1) (item 5) has been removed. If you listened to our webinar with Emma Bagshaw in June, Emma advised members to remove this item from List B (1) because applications normally have an expiration of 6 months.
  • List B (2) (item 2) has been updated to include Isle of Man applications under the EU Settlement Scheme.
  • A new entry has been included in List B (2) (item 5). Employers can now accept a digital or paper Certificate of Application issued by the Home Office confirming that an application under the EU Settlement Scheme has been made on or after 1 July 2021. This must be accompanied by a Positive Verification Notice.
  • The guidance has clarified that an online check using a ‘share code’ must be confirmed in the presence of the job applicant (whether in person or via a video link). There was some doubt as to how these checks should be performed.
  • EEA family permits are no longer acceptable confirmation of right to work from 30 June 2021.
  • Adjusted checks due to COVID-19 will continue until 5 April 2022 (inclusive).

The updated guidance can be found here.

Why have the changes been made? 

The changes have been made to help individuals who applied after the deadline (30 June 2021) to the EU Settlement Scheme, to obtain work.  This includes EU nationals and their family members who qualified to live in the UK on 31 December 2021.    

What will be the practical effect of the changes?             

Those job applicants who have an ongoing application under the EU Settlement Scheme will be able to either:

  1. Produce an acknowledgement letter/email or Certificate of Application confirming that they have made an application to the EU Settlement Scheme on or before 30 June 2021.
  2. Produce a paper Certificate of Application confirming an application to the EU Settlement Scheme was made on or after 1 July 2021.
  3. Be able to use the online checking service using a ‘share code’. In some circumstances, you will be directed to the Employer Checking Service to confirm the details.

The date on the letter will be important, employers will need to see a paper Certificate of Application letter or confirmation using the online checking service for applications submitted after 1 July 2021. The letter will clearly be marked ‘Certificate of Application’. An acknowledgement letter cannot be accepted.

In all cases, employers will need to obtain a Positive Verification Notice. This is obtained from the Employer’s Checking Service and confirms that an application has been received and accepted (although not processed).

You can find more details on page 20 of the updated guidance.

What do you need to do?       

  • Update List A and List B. Don’t forget that applicants to the EU Settlement Scheme pre and post 30 June 2021 will now be able to work where a Positive Verification Notice is obtained from the Employer Checking Service and they provide confirmation of their application (a Certificate of Application).
  • For online check, ensure your guidance tells managers that they should schedule a video call or in-person meeting with the person who has provided a share code. This is to confirm the identity of the person attending work is the same as on the Home Office systems.

What else has been happening?

Since March 2020, the Home Office permitted employers to complete adjusted checks where it is not possible to obtain original documents from applicants due to COVID-19. Instead, applicants can provide a scanned or photographed document sent by email or Whatsapp etc.

The Government has confirmed that they are looking to continue the adjusted check beyond next April when the scheme is due to close (5 April 2022). There will be much greater access to ‘share codes’ to use the online checking service, which will reduce the amount of physical documents required to complete right to work checks.

What if we need further help?

Please contact our advice team if you need any help around right to work checks.

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