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‘Sloppy’ Home Office Guidance on EU Nationals’ Employment Rights Following Brexit Leaves Business Confused

‘Sloppy’ Home Office Guidance on EU Nationals’ Employment Rights Following Brexit Leaves Business Confused

Current Home Office guidance potentially harmful to businesses and employees warns corporate immigration solicitor Thal Vasishta of Paragon Law as the firm provides new guidance on how the employment of EU nationals can best be managed following the end of the transition period. 

With the UK and EU transition period set to end on 31 December 2020, businesses across the UK are being urged by the Government to carry out the necessary checks to ensure they are compliant with the changing rules and regulations.

However, many businesses have been left confused as to exactly what rights EU nationals arriving in the UK after 1st January 2021 will have with regards to working here and the checks that they, as employers, need to carry out.

Thal Vasishta, corporate immigration solicitor and founder of Paragon Law, advises that businesses should not take the Home Office guidance literally with regards to Right to Work checks from January 2021 to July 2021 and retrospective checks from 1 July 2021. Thal, one of the UK’s leading experts, is instead recommending employers adopt a more ‘stepped’ approach than advised by the current Home Office guidance as this could minimize potential issues for both them and their employees.

Current Home Office Guidance on Right to Work Checks.

Thal explains the guidance issued by the Home Office regarding Right to Work obligations from 1 January 2021 to 30 June 2021:


  • “Whilst a citizen of the European Economic Area (EEA) or Swiss national needs to be resident in the UK by 31st December 2020 to be eligible for the EU Settlement Scheme, the deadline for applications is 30th June 2021.
  • During the six month ‘grace period’ up until the end of June 2021, employers will not be expected to differentiate between those arriving by the 31st December 2020 (who are eligible to apply to the EU Settlement Scheme) and those arriving after this date (who are not eligible).
  • An EEA or Swiss Passport or ID card will remain valid evidence of right to work during the ‘grace period’ and employers must not discriminate against those without Settled or pre-Settled status – employers are also not required to carry out follow-up checks after 30th June 2021.
  • However, if an individual has not applied to the EU Settlement Scheme by 30th June 2021 or does not hold any other form of leave to remain, they will be in the UK without lawful status, will not have a right to work from that date, and may be liable to enforcement action.
  • Furthermore, in a scenario where an employee informs an employer after 30th June 2021 that they have not applied to the EU Settlement Scheme, the employer may not be able to continue legally employing that individual.”


This should give businesses the assurance that there will be no sanctions against them (between 1 January 2021 and 30 June 2021) if they choose not to distinguish between an EEA national that was resident in the UK before 31 December and those that were not when carrying out RTW’s on new recruits. They would also not face sanctions if they decide not to keep a record of which EEA/Swiss colleagues have registered under the EU Settlement Scheme (EUSS).

Sloppy Guidance Causes Risk

Whilst the guidance should give businesses assurance and provide a degree of continuity of labour over the next 6 months, it has overlooked potential risks for both employers and employees.

Thal adds:

“EEA and Swiss nationals who have not applied under the EU Settlement Scheme and continue to remain after 30 June are liable to enforcement and removal at any time. This is where the current guidance is sloppy and does not foresee potential consequences to businesses or those EEA/Swiss nationals that decide to remain and work with a business despite not having the legal status to do so after 30 June.”

“If a business employs EU nationals who have not applied or secured settled status, they cannot dismiss them prior to 1st July 2021. This presents a risk to the employer as, if they wish to continue to operate legally, they could be in a position that on 1st July 2021 several employees leave voluntarily, or they have to begin the dismissal process. Both scenarios present risks to business. The clients that I advise see their EEA/Swiss cohort as long-term investments in the business and do not want to go through the expense of replacing them.”

“For employees, the Home Office’s current position leaves EEA national employees open to abuse from less scrupulous employers. They will not be able to work for another employer without proof of registration under the EUSS but can continue to work with their existing employer if they and the employer continue to be complicit in their continued right to work. In addition, they would not be entitled to free NHS treatment and this should be an added concern should an accident occur at work."

Right to Work Checks and Workforce Certainty

The current guidance puts the emphasis on businesses to carry out the necessary checks and act as Home Office outposts. This will be a complex period for businesses and HR Managers and Paragon Law therefore advises all businesses to balance the Government’s position on Right to Work checks against certainty in their work force, employment rights and their duty of care to all employees, including EEA/Swiss nationals without settled status.

For employers who want to ensure they are operating legally and appropriately when employing EU nationals during the upcoming six month grace period, Paragon Law suggests a stepped approach as Thal explains:

“The stepped approach that I am advising my clients to adopt is to engage with EEA/Swiss applicants during the job application stage and up until 30 June. This engagement should be to inform, encourage and support EEA/Swiss colleagues with EU Settlement applications but based on this new guidance from the Home Office it should be made clear that there is no obligation on the part of the employee to take up this support and that it will not affect their work with the business, well not until 1 July.”

“When framing questions during the interview process or asking for documents to confirm date of residency it should be done so sympathetically, making it clear to applicants that this information does not need to be given but that it will help the applicant and the business with the correct visa now and in the future to allow them to live and work in the UK after 30 June. I advise all businesses to seek advice to avoid discrimination claims during the recruitment process.”

For EU nationals looking for advice, Paragon provides free telephone advice to EU citizens and free representation to Midlands based vulnerable EU citizens wishing to remain in the UK and retain employment.

Paragon Law works with some of the UK’s largest companies such as Toyota and Vision Express, providing advice on managing their workforce and ensuring compliance with UK immigration law.

Thalej Vasishta is named as one of the leading Immigration Lawyers in the UK according to Legal 500. Both Thalej and Paragon Law have been listed in The Times Best Law Firms 2019.


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