Avoiding discrimination…but tripping over immigration rules!

By Cas Carrington

You know that old hackneyed phrase ‘the devil is in the detail’?  Well, never were these words more truly spoken than when considering the latest official advice on employing EU citizens up until 30 June 2021.

At first glance, the Government guidance on checking an applicant’s right to work is straightforward – they just need to show employers their passport to prove their nationality. So far, this is clear. EU citizens who arrive in the UK before 1 January 2021 can continue to work until 1 July 2021 without needing to show they have settled status here.

However, EU citizens entering the UK for work after 1 January 2021 will be subject to immigration control under a points-based immigration system, in the same way citizens from the rest of the world are (excluding Irish citizens), because free movement of labour between the UK and EU member states ends on 31 December 2020. When that happens, employers will have to ask EU job applicants for proof of their date of entry to the UK if they are to maintain their statutory defence against prosecution for employing an illegal worker, and to be sure that the applicant doesn’t require a visa. Still no problem there. 

But what about those employers who wish to recruit an EU citizen close to 1 July 2021? EU citizens have until 30 June 2021 to apply for settled status provided they entered the UK before 1 January 2021. The employer will need to know that the applicant has the right to work in the UK after 30 June 2021, so they’ll just ask for proof of that, right? I’m afraid you’d be wrong if you thought so.  

The problem lies with the latest advice on the Government’s website which states, ‘You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.’

The question is, how would an employer know that the EU applicant had the right to work in the UK after 30 June 2021? Recruitment could take place anytime up to, or even on, 30 June 2021, when the new recruit would still have the legal right to work in the UK. But if they don’t have settled status, or haven’t applied for it by then, or don’t have a visa, they will be an illegal worker on 1 July 2021.

Surely no employer would consider recruiting someone from outside the EU to start work on a Monday morning if they weren’t sure they would be a legal worker the next day? Of course not! But that’s the advice employers are currently being given when recruiting EU citizens in the UK. So, are employers being asked to treat people from outside the EU less favourably in an attempt to prevent discrimination against EU citizens? There is a lawful basis for doing so before the end of the transition period, but under the current terms there definitely isn’t one once the transition period has ended.

If your head feels like it is about to go bang, fear not – you’re not alone. It’s a bit of a muddle. Fortunately, the new UK immigration system is one of the topics we’re going to be tackling during the Spring Law on Tour starting on 20 April.

With so much going on right now in employment law, why not book to spend the day with me, my colleague John Fenton, and like-minded professionals, on one of our 14 tour dates.

The day is entertaining and highly informative (if I say so myself) and you’ll come away with a comprehensive handbook that complements the sessions, as well as helpful checklists, model letters, and other resources.

We look forward to seeing you there!

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