Hiring a foreign national and the EU Settlement Scheme

Right to work
Everyone needs to go through a right to work check to establish whether their employee is allowed to work in the UK. There are heavy penalties of up to £20,000 per illegal employee if you get this wrong. Due to Brexit transition periods and the pandemic, the rules around these have been phased in over a longer period than originally intended. As of 1st July 2021 though, they come into force in full.
For UK nationals (and Irish nationals too), it is relatively straightforward to check the right to work. You still need to do a robust inspection of an original official document like a passport (scrutinising whether photos and dates of birth tally etc.), taking a good quality copy and keeping records, but that is sufficient.
However, for all foreign nationals (other than the Irish) a combination of some or all of the following schemes come into play to determine their immigration status:

  • The EU Settlement Scheme
  • The points-based immigration system
  • Employer sponsorship

EU Settlement scheme
Let’s start with the EU Settlement Scheme. This applies to EU nationals who started living in the UK prior to 31st December 2020. They had the opportunity to register before 30th June 2021 for either settled or pre-settled status. This gives them a number of rights, depending on how long they had been in the UK, including an automatic right to work. As of June 2021, 5.4 million people had registered with the scheme.
It is an individual’s responsibility to have done this, but you will need to check that it has been done as part of the confirmation that they have a right to work in the UK.

Points-based immigration system
Every foreign national who does not have settled or pre-settled status, whether EU or otherwise, is subject to the new points-based immigration system. This sees points awarded for characteristics like education level, fluency of English, and salary. A threshold of 70 points must be reached to qualify for a right to work. Nannies are included on the list of eligible occupations.

Employer sponsorship and the checking of a right to work for foreign nationals
If you choose to employ foreign nationals other than Irish or settled/pre-settled EU citizens, you will need to go through a sponsorship process. This costs £536 per employee for small employers. It typically takes weeks to gain the licence, so plan ahead!

Checking the right to work
Candidates who have had to actively gain a satisfactory immigration status through the points system or settlement scheme may provide you with a share code which enables you to do your employer checks electronically, directly with the government. If they do not provide this, you will have to conduct the same robust physical checks of documents that we described earlier for UK and Irish nationals.

Tips on hiring foreign nationals
As you can see, there is something of a right-to-work maze to navigate when hiring now, so it is essential to be fully informed. Here are some further pointers:

  • You must follow the right to work process properly. Even if you are duped into hiring someone who did not have a right to work, demonstrating that you followed the process can be a defence from incurring a penalty which can extend to £20,000 per illegal employee.
  • It is immigration status, not nationality, that you are checking.
  • Ensure you implement right to work checks consistently and fairly. Changing your process for people with differing characteristics could expose you to a discrimination claim.
  • Keep excellent records – they will be what you rely on if something goes wrong.
  • Give yourself time – some of these processes take weeks, so make sure you start far enough in advance to comply with all the rules.