Following the UK’s departure from the EU on 31 January 2020, we are currently in a period of transition which is due to come to an end on 31 December 2020. During the transition period, EEA and Swiss nationals who are already in the UK will have until 30 June 2021 to apply for settled or pre-settled status. Individuals with settled or pre-settled status will have the right to right in the UK.

So what checks should employers make?

Employers must continue to carry out right to work checks for all workers before employing them. Until 30 June 2021 European Economic Area (EEA) and Swiss nationals can continue to provide a passport or national identity card as evidence of their right to work in the UK.

Online checking

An online checking service is available to employers as an additional tool. This service confirms the settled or pre-settled status of an individual and therefore the right to work. There is no obligation for individuals to allow these checks to be undertaken prior to 30 June 2021 and they may choose to provide their passport or national identity card instead.

Employers must be mindful that any insistence to see evidence of settled or pre-settled status could result in a complaint of race discrimination.

Do I have to check my current employees?

As long as the relevant right to work checks have already been carried out as part of the standard recruitment process, employers will not need to carry out right to work checks retrospectively to establish settled or pre-settled status for existing EEA or Swiss national employees once the transition period has ended.

Visa requirements

Free movement between UK and the EEA ends on 31 December 2020. EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status and will require a visa to work in the UK. At this stage, employers will need to see evidence of their visa along with their passport or national identity card.

Challenge for employers

Until 30 June 2021, EEA and Swiss nationals are not required to share their settled or pre-settled status. This presents a challenge to employers who may find it difficult to check the requirement to hold a visa if they are unable to determine whether the individual was already in the UK before 1 January 2021. Further guidance is expected from the Home Office in due course.