The below questions and answers should be read in conjunction with our right to work standard.
For questions relating to international recruitment, please visit our dedicated immigration section, which includes guidance on visa processes and various Q&A pages on immigration and international recruitment.
Q. What are the changes to the immigration system following the end of the transition period of the UK's withdrawal from the EU on 31 December 2020?
A new points-based immigration system came into effect on 1 January 2021. The new system applies to all overseas candidates, including those from the EEA. You can find more detail about this on the gov.uk website including an introduction for employers and UK points-based immigration system: further details statement. You may also find it useful to read our summary to understand what the changes mean for NHS organisations.
Q. How can I check the right of work of EEA citizens following the end of the transition period of the UK's withdrawal from the EU on 31 December 2020?
There will be no changes to the way that EU, EEA and Swiss citizens can prove their right to work until 30 June 2021. Until this date individuals can prove their right to work in the following ways:
- EU, EEA or Swiss citizens can use their passport or national identity card
- non-EU, EEA or Swiss citizen family members can use an immigration status document listed in Home Office guidance
- EU, EEA and Swiss citizens and their family members can use the online right to work checking service.
If an applicant uses the online checking service this will generate a share code so that you can check an applicant's right to work status online instead of requiring them to present documentary evidence.
Irish nationals continue to have the right to work in the UK under Common Travel Area arrangements and there is no change to the way individuals prove their right to work in the UK.
Q. Am I required to check that an EEA national has been granted UK immigration status and has the right to work under the EU Settlement Scheme?
EU, EEA or Swiss citizens and their family members who are living in the UK before 1 January 2021 need to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. Applications for the scheme can be made online. Further information and resources to support staff to apply using the online service can be on the NHS Employers website.
EU, EEA, or Swiss citizens can continue to use their passport or national identity card to prove their right to work in the UK until 30 June 2021. Alternatively, an EEA national (or their family member) that has been granted a UK immigration status under the EU Settlement Scheme may choose to share evidence of their right to work using the online right to work checking service.
You cannot require an EEA national (or their family member) to evidence they have applied for or have been granted UK immigration status under the EU Settlement Scheme until after 30 June 2021. You must not discriminate between those who have been granted a status under the EU Settlement Scheme and those who have not.
Q. Do prospective employees who hold a valid biometric residence permit have to provide evidence of their spouse's passport in demonstrating their right to work?
No, the prospective employee will have to demonstrate their own right to work. For migrants subject to immigration control, this will generally be demonstrated through their biometric residence permit or passport.
Q. Can we accept a passport that has expired for a right to work check?
For right to work checks, there are a small number of exceptions to the valid and current rule. These exceptions include a UK/European Economic Area (EEA) passport and an EEA national identity card, please consult the UK Visas and Immigration employer’s guide on the gov.uk website for further information if you are unsure what can be accepted.
Q. Which part(s) of the passport need to be copied/scanned?
Employers need to make a copy of the relevant page or pages of the document in a format that cannot be subsequently altered, for example a photocopy or scan.
In the case of a passport or other travel document, the following parts must be photocopied or scanned: any page with the document’s expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.
Q. What documents do you need to verify to prove the right to work of a non-EEA family member of an EEA/Swiss national who is already residing/working in the UK?
A non-EEA family member of an EEA/Swiss national already residing/working in the UK will also be able to prove their right to work, providing they hold a valid passport and they have an extended right of residence. This right continues for as long as they remain a family member (in the case of a spouse) of the EEA national.
When checking the right to work of applicants with this right and a check through the Home Office's Employer Checking Service (ECS) reveals a negative verification notice (i.e. an in-time extension has not been made), employers must ensure they consider all other documents available to verify their right to work before terminating their employment to avoid any claims of unfair dismissal/discrimination.
While non-EEA family members of EEA/Swiss citizens do not currently need any documents from the Home Office as evidence of their right to work, they will need to register under the EU Settlement Scheme to preserve their right to work beyond 30 June 2021. Further information about the EU settlement scheme for individuals is available on the Gov.uk website.
Employers must refer to Home Office guidance for information about the full range of documents that can be accepted to prove an applicant's right to work.
Q. Can we record which of our EU staff have obtained settled status?
Settled status is the immigration status that EU citizens need to apply for to remain legally resident in the UK after 30 June 2021.
From 31 July 2020 trusts can log an individual's settled status on ESR under one of three options:
- Unknown/not declared.
The Home Office system system will not differentiate between those granted pre-settled or settled status and employers may leave the field blank if they do not have this information.
Q. My organisation asks candidates about their right to work and their immigration status prior to shortlisting. What are the risks if we exclude requiring skilled worker sponsorship from shortlists because the post does not satisfy the qualifications or salary requirement to qualify for skilled worker sponsorship?
You will face the risk of a challenge by individual job applicants or complaints that your recruitment practices are unlawful. The imposition of requirements which have a more disadvantageous impact on a particular group will amount to indirect discrimination, unless your organisation can objectively justify the reasons behind the requirement. Asking this question at an early stage and having a blanket policy which excludes individuals who require sponsorship will disadvantage non-UK candidates on the grounds of their nationality or citizenship, which could also amount to direct race discrimination.
The Home Office Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working provides further guidance on how to avoid unlawful discrimination when conducting right to work checks. Also see our immigration and recruitment pages for guidance on avoiding discrimination during the recruitment process.