Until the UK formally leaves the EU, European Economic Area (EEA) and Swiss nationals remain entitled to live and work in the UK without being subject to immigration control – employers need only carry out appropriate checks to confirm rights to work.

What will happen after the UK is no longer part of the EU remains unclear but it is likely that immigration control, possibly similar to the current points-based system, will apply to such workers. This means more employers may need to apply for sponsor licences and comply with sponsor obligations.

Right to work checks for all
At present, UK employers should carry out right to work checks for all staff, including Scottish and EEA nationals, to avoid any inference of discrimination. Checks must be carried out before work starts and at the same stage for all applicants. Shortlisting is a good point at which to request the necessary documents. Offers of employment should be conditional on candidates providing evidence of appropriate right to work and withdrawn if not submitted. Contracts of employment should require that appropriate permission be held at all times and be clear that, if not, employment may be terminated immediately.

To avoid the extensive penalties for employing illegal workers, employers should ensure they can establish a ‘statutory excuse’ showing right to work. This is a 3-step process involving:
Asking shortlisted applicants to produce original documents specified in Home Office lists. Utility bills, photocard driver’s licences or NI numbers alone are insufficient.
Checking, in the presence of the worker that the documents relate to the individual, are original, unaltered and valid. For example, do the photo and date of birth match?
Taking a copy of the evidence and keeping it securely, recording the date of the check and when follow up may be required. This information should be retained for two years after the end of employment.

Sanctions for employing illegal workers are substantial, with civil penalties of up to £20,000 per illegal worker. Since 2016 there have been extensive powers to search premises, seize and retain evidence and to issue a business closure notice or illegal working compliance order where businesses have flouted right to work rules. The criminal offence of employing someone the employer knows, or has reasonable cause to believe is disqualified may result in an unlimited fine or prison sentence of up to five years. Employers who hold a sponsor licence may also see their sponsor licence revoked.

Common and future problem areas
Many employers are clued up on the initial checks, when an employee starts work, but forget that this is not the end of the matter. For example, if a worker has time limited permission to work, the expiry date must be noted and further checks carried out before that date, to avoid penalties.

Care must also be taken with non-EEA or Swiss national employees, subject to immigration control, in a redundancy situation, as being offered alternative employment, which does not equate to their current role, whether in salary, location or duties, could invalidate their visa. Renewed permission may need to be sought for the new role. Similarly, such an employee who becomes disabled and requires adjustments, such as reduced hours, may find they are in the same situation.

Post Brexit, as more employers are likely to become sponsors and more migrant workers subject to immigration controls, these issues will become increasingly common. This is an issue to watch; being up-to-date with right to work checks and immigration status will make it easier to adapt to whatever post Brexit regime is eventually adopted. Employers who are unclear on their obligations in relation to particular workers should seek early advice.