Pre 31 December 2020, Right to Work (RTW) and Right to Rent (RTR) checks on EEA or their family members were simple for employers and landlords; an EU national ID card, EU passport or a Resident permit would have sufficed. For landlords and especially employers, they now have to trend carefully in order to comply with both immigration and employment laws. Failing either of them could mean a hefty fine from the Home Office and/or a possible discrimination claim brought against them in the Tribunal.
Free movement between the EU and the UK ended on 31 December 2020. Therefore, EEA nationals and their family members arriving in the UK from 1 January 2021 will need to have applied under the UK immigration laws in order to live and work in the UK legally. EEA and Swiss nationals can continue to use their passport and national ID cards to evidence their right to rent and right to work until 30 June 2021. Legally, landlords and Employers must only ask for proof of their ID (passport or national ID); they cannot insist that an individual uses the online service to prove RTW or RTR or discriminate against those who wish to use their EU passport or EU national ID card.
So what's the issue?
Not being able to differentiate EEA nationals who were resident in the UK before 31 December 2020 and those who arrived after, places landlords and employers in a precarious position. Allowing a tenant to rent or hiring an employee when the individual does not actually have the right to rent or work may result in a £20,000 penalty fine (and for employers, revocation of their Home Office sponsor licence).
Finally, some clarity?
On 17 March 2021, the Home Office has officially updated and provided further guidance on RTW checks for EEA and Swiss nationals during the grace period (1 January to 30 June 2021).
Employers are not expected to differentiate between EEA nationals who arrived before 31 December 2020 and those who arrived during the grace period. There is no mandatory requirement to carry out checks retrospectively on EEA nationals who were employed on or before 30 June 2021. The employer will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial RTW checks were completed correctly in line with the Home Office guidance. If the employer does choose to carry out the checks retrospectively after 30 June 2021, they must do so in a non-discriminatory manner.
The same applies for landlords when undertaking RTR checks on potential tenants who are EEA nationals. Irish citizens will continue to have the right to work and rent as they do now.
From the 1 July 2021, RTW and RTR checks will change and all EEA nationals will be required to evidence their rights by showing their immigration status via the online service or manual checks. New guidance on how to conduct these checks will be published on the Home Office website prior to 1 July 2021.
Useful guides on conducting RTW and RTR checks can be found here:
Understanding your right to work in the U: EU, EEA and Swiss citizens
Right to Rent Checks: a user guide for tenants and landlords