Right to work FAQs: HR guidance

The following advice regards key changes that may affect organisations from 1 January 2021. It covers details of the new scheme, impacts on your existing staff, and how this affects the recruitment of future employees. We recommend you refer to these in tandem with the presentation slides from our recent right to work webinar.

Disclaimer – these frequently asked questions are for general HR guidance only and based on information available at the time (18 December 2020). Please seek specialist legal advice for complex cases.

Correct but ensure you have checked their right to remain is not the previous ‘permanent residence’ status which was superseded by the Settlement Scheme (see Q3).

Permanent residence status will not be sufficient to maintain the right to stay in the UK. Even with permanent residence status, an EU employee must still apply for settled status via the Settlement Scheme.

You will have already undertaken right to work (RTW) checks of all your existing employees, including those who are EU nationals who are already in the UK by 31 December 2020. You do not need to ask EU nationals already working for you to provide any further documentation in regard to their right to work in the UK. Any new or prospective employees coming to the UK after 31 December will require a visa.

There is a comprehensive list of acceptable documents that individuals can provide for the right to work in the UK checks. A passport is one of these acceptable documents. Until 30 June 2021, EU citizens do not have to provide evidence of settled status.

In most cases, you should only need to carry out one right to work in the UK check per employee (when you recruit them before they start working for you). The exception is for employees who have limited leave to remain (a visa with an expiry date) who require repeat checks throughout their employment.

You do not need this on file for any existing employee (at 31 December 2020) as you will have carried out their right to work in the UK check when you recruited them. You will only require this evidence when you recruit a new EU national employee after 30 June 2021. If they do not have evidence of settled status or pre-settled status, they will need a visa.

Yes, but this actually applies to employing anyone from outside the UK after 31 December 2020. You will be required to be a Home Office licensed sponsor to employ someone from outside the UK under the points-based system (PBS).

As their employer, you will have already carried out a right to work check for this individual when you recruited them. There is nothing further for you to action, however, it is recommended you signpost your EU national employees to the EU Settlement Scheme. The employee will need to have secured settled status or pre-settled status or applied prior to 30 June 2021 in order to maintain their rights to stay and work in the UK. Here is a link to the Home Office’s employer toolkit.

You have a duty not to discriminate against EU, EEA or Swiss citizens. Remember, you cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021 (and this is when you are recruiting, not for your existing staff).

If they are already living and working in the UK, there is no change. If they are not in the UK by 31 December 2020, they will need to apply for a student visa (Tier 4) in the same way that non-EU citizens currently do. Tier 4 visas usually have restrictions to the number of hours the holder can work per week; usually 10 or 20 hours per week during term time and unrestricted outside of term time. This is because their main reason for being in the UK is to study. The restrictions are visible on the visa itself.

Our understanding is that this refers to when the government has lifted all restrictions relating to COVID-19. It will make an announcement when it deems this ‘restricted’ period to be over and ‘usual practice’ (in terms of the right to work in the UK checks) can resume.

You must be mindful of the potential risk of unlawfully discriminating applicants. If you are unlikely to be able to meet the costs and administrative burden of sponsorship, you could include on the advert: ‘applicants must have the existing right to work in the UK'.

In terms of right to work, this will not be sufficient to meet the English test in the PBS scheme from January. They will need to evidence their level of English (see Q15 for information).

In terms of a filter for selection, this could potentially lead to a discrimination complaint (although unlikely) but we would avoid if possible and use different filters linked to essential skills – and then the level of English can be tested as part of the application process. You could therefore ask: ‘Have you got the right to work in the UK from 1 January 2021?'

Evidence includes:

  • proof of nationality from a majority English-speaking country, for example, Australia, Jamaica, USA, etc
  • proof of an academic degree taught in English
  • passing a secure English test from the UK government-approved list – must be less than two years from the date of application.

  • Agency workers: if they are employed directly by an employment agency, then the responsibility for verifying right to work sits with the agency, rather than the employer.
  • Sub-contractors or staff directly recruited by a third-party supplier, for example, cleaning or security staff, have their employment relationship with the supplier, not with the company using the services. As such, the supplier is responsible for the checks as they recruit, train and pay these staff and has control over who is supplied to work for your business.
  • Genuinely self-employed contractors do not require checks, although great caution must be exercised here as they can often fall into the ‘worker’ or even ‘employee’ category (despite the best of intentions) which means you as the ‘employer’ will have to check their right to work in the UK.

Not for genuine volunteers because the main route is for skilled workers and in the points-based system there are minimum salary requirements that would not apply to volunteers.

In more general terms, UKVI states that ‘the legal distinction between an employee and a volunteer can be quite complex. In particular, volunteers should not have a contract with an obligation to give their time; they must not be a substitute for an employee; and they must not be doing unpaid work, that is, receiving payment in kind (although they are sometimes reimbursed for reasonable travel and subsistence expenses).

The Immigration Rules also prevent certain categories of migrant from carrying out voluntary work or voluntary activity, such as visitors and au pairs. We strongly recommend that organisations seek specific advice for their volunteering activity and if in doubt, consider carrying out right to work in the UK checks on all volunteers as well as employees to avoid any risk.

You may find this NCVO guidance useful.

The Withdrawal Agreement provided a ‘buffer’ to prevent European citizens from finding themselves suddenly without EU free movement law and without any other lawful residence status on 1 January 2021. So, a further six additional months' period was agreed, called the ‘grace period’, to allow European citizens and their family members to protect their lawful UK residence status via the EU Settlement Scheme. It is our understanding that this would not be affected by a ‘no-trade deal’ scenario, however, we cannot guarantee this.

No, the retrospective check must be carried out on existing staff within eight weeks of the COVID-19 measures ending.

This will vary depending on the category but a tier 2 visa typically varies from £232 and £1,220. Consider also other costs such as language tests, visas for dependents and of course, the cost of relocating, etc.

There is no duty for the employer to reimburse visa costs to the employee. If you choose to do so, ensure it is as part of a consistent policy. Note that the payment would need to comply with relevant HMRC tax and reporting rules.

Do consider you may need to think about a relocation package.

An applicant can apply as the dependent family member of a points-based system (PBS) migrant if they are:

  • husband
  • wife
  • civil partner
  • unmarried partner
  • same-sex partner
  • child (under the age of 18).

The Immigration Health Surcharge will continue to be paid by most overseas migrants coming to the UK for more than six months. Those costs are £624 per year from October 2020. These costs will also apply to dependants as well as to the main applicant. The cost for a family of four for a five-year period will be just under £12,500.