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Can HR check employees' Settled Status post-Brexit?

Whatever the outcome of the apparently never-ending Brexit talks, employers potentially face headaches when recruiting over the coming months thanks to a lack of clear guidance on how EU citizens should be treated to avoid falling foul of either the Equality Act or Immigration rules.

On the face of it, everything seems straightforward. EU citizens who live in the UK on or before 31 December 2020 can continue to work and apply for new jobs as they currently do, and employers must apply the same right to work checks.

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They have until 30 June 2021 to apply for Settled Status and if it is granted (or they receive pre-settled status which means that they have lived in the UK for less than 5 years) then they can continue to live and work here on the same basis as UK citizens.

Remember Settled Status doesn’t apply to citizens of Ireland who retain the right to live and work here regardless.

EU citizens who arrive after 1 January 2021, on the other hand, can only work here if they meet specific criteria and have a sponsor employer. Again, this doesn’t apply to Irish citizens who can legally work here on the same basis as currently.

However, when recruiting in the next few months, how do you check whether new European workers were in the UK before or after 1 January? And what about those who have lived and worked here on fixed term contracts, with periods living elsewhere in the EU, who may or may not be eligible for settled status?

You can’t check whether they have settled status because:

  • The government is not issuing any written confirmation to those who gain settled status (and have explicitly said that any correspondence between the individual and the Home Office is not acceptable as evidence).
  • A prospective employee may voluntarily provide you with access to their information via the government website – but cannot be required to do so until after 1 July.
  • You can’t ask the individual whether they have applied or received settled status until 1 July since it introduces the possibility of racial discrimination (since it is a criterion that you wouldn’t ask all candidates, and you are doing so on the grounds of their nationality).
  • In any case, even if eligible they might not have yet made their application – they have until the end of June.

Employing someone who isn’t eligible to work in the UK can however lead to your company being fined – potentially up to £20,000.


So, what can an employer do?

Some larger companies use pre-screening organisations to check candidates, but this isn’t a viable option for many.

If your candidate declares on their CV or application form that they are currently or have previously worked for another UK organisation, then this may be helpful – although you would be well advised to contact those employers for references to confirm that they genuinely did work there.

If they have a national insurance number already this may be evidence that they have been in the UK for some time, or already have a visa – although it’s not a cast-iron guarantee as they may fall into the group who have worked here periodically.

Carry out right to work checks earlier in the recruitment process - for example at first interview stage – so that any queries can be cleared up long before you get to the point of making an offer.

Make sure that you carry out the same checks on all candidates – remember requiring only those from EU countries to provide additional information is a clear way in which you could be at risk of racial discrimination.

As a final point, these new arrangements also apply to Norway, Iceland, Switzerland and Lichtenstein which aren’t members of the EU but were included in the previous freedom of movement rules.

We don’t know as yet whether the Home Office will be giving employers a ‘grace period’ to set up new systems, or if they are going to issue further guidance to employers to cover the interim period. But even if they do, there will be a lot of additional red tape for many employers, with small businesses who often lack dedicated HR support potentially hardest hit.

Simon Jones is a chartered fellow of the CIPD and director of Ariadne Associates.