Settled and pre-settled status to be confirmed digitally

16 January 2020

With the proposed Brexit deadline of 31 January 2020 rapidly approaching, there has been widespread concern that not all employers are prepared for some of the upcoming changes to the right to work documentation and how it can be checked. Employers are already used to checking a prospective new employee’s right to work, but Brexit brings with it new terminology; either settled or pre-settled status and a new way of checking the right to work.

Guidance on GOV.UK confirms that right to work checks for EU, EEA and Swiss citizens will not change until 1 January 2021. There will be no change to the right to work of EU, EEA and Swiss citizens and their family members living in the UK until 31 December 2020 if the UK leaves the EU without a deal.  So you will need to check a job applicant’s right to work in the same way as now until 1 January 2021.

They’ll be able to prove their right to work using either:

  • their passport or national identity card if they’re an EU, EEA or Swiss citizen
  • their biometric residence card if they’re a non-EU, EEA or Swiss citizen family member
  • their status under the EU Settlement Scheme or EU Temporary Leave Scheme using the Home Office’s online right to work checking service

If an individual proves their right to work under the EU Settlement Scheme, the evidence will be digital rather than the more usual physical paper evidence.  To check this digital evidence, HR and payroll professionals can make use of a service offered on the pages, which will allow businesses to check an individual’s settled or pre-settled status, and therefore their right to work within the UK.

It requires any affected staff members to complete the ‘View and prove your settled or pre-settled status’ tool, which will provide them with a ‘share code’. They can then pass this share code onto their employer, which can be used to verify the employee’s settled / pre-settled status and subsequently, their right to work eligibility. 

Critics of this process have expressed their concern that there may be some workers who will find it difficult to access the online tool and so will not be able to prove their right to work, which may lead to scenarios in which they are discriminated. There are others that would simply prefer a tangible document that they can use to show that they have the right to work within the UK, and there are those within HR and payroll departments who are seeking to confirm a worker’s status who also prefer a physical piece of evidence.

Employers need to be prepared for the changes and expect to receive right to work evidence in both physical and digital formats in the very near future. The new digital process has been explored in this article but, as a reminder, the correct forms of physical documentation to use can be accessed here. Payroll departments should arrange to discuss the new arrangements with corresponding HR teams to aid smooth implementation of the new processes and to ensure that all impacted individuals understand what the changes are and how they will be affected.

Employers have a duty not to discriminate against EU, EEA or Swiss citizens and cannot require them to provide evidence of their status under the EU Settlement Scheme or European temporary leave to remain until 1 January 2021.


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