As an employer in Scotland, you can hire a British or Irish national without restriction. This means they're entitled to live and work here and the rest of the UK and do not require a visa to do so. 

A 'British national' can be broadly defined as someone who either has a British passport or is entitled to obtain one. There are different methods for acquiring a British passport, such as through birth, descent or residence. 

Those from the Channel Islands and the Isle of Man may also work without restriction in the UK. 

Irish nationals are broadly defined as those who have an Irish passport and their rights to live and work in the UK are governed by the Common Travel Area arrangements. 

Non-British and non-Irish nationals who are married to, or children of, British citizens may make an application enter the UK using a family visa opens in a new window . Those in the UK on this basis are generally entitled to work without restriction.  

However, if there are any restrictions, they will be outlined on their Biometric Residence Card or other documents legally giving them the right to be in the UK. 

Spouses, civil partners, unmarried partners and dependent family members of migrants on a Points-Based System visa (Skilled Worker, Student or Temporary Worker visas) can generally apply to join them in Scotland and are usually able to work in the UK. 

UK Ancestry visas opens in a new window  are available to most Commonwealth citizens who have a British (or British-born) grandparent. This visa lasts for five years. People who hold this type of visa can usually work in the UK without restriction for its duration. 

Find out more about visa routes for hiring in Scotland  

The European Economic Area (EEA) consists of the European Union (EU) along with Iceland, Norway and Liechtenstein. 

Following the end of the Brexit Grace period on 30 June 2021, changes were made to the employers right to work guidance. This was changed from 1 July 2021 and again on 31 August 2021. Employers should always check the Home Office website for the latest guidance as it does change regularly. 

From 1 July 2021 most EU, EEA and Swiss (EEA) citizens will have applied to the EU Settlement Scheme. They can no longer rely on an EEA passport to prove their right to work. 

There are also special interim measures in place for EU, EEA and Swiss citizens in relation to right to work checks which apply if they have not applied in time to the EU Settlement Scheme. These are outlined below. 

Get the latest guidance on employees EU, EEA and Swiss nationals on GOV.UK opens in a new window  

Existing EEA and Swiss Employees – are retrospective checks needed? 

The latest government guidance opens in a new window  confirms that it's not the responsibility of the employer to check that existing employees have applied to the EU Settlement scheme and there is no requirement for employers to undertake retrospective checks on EEA and Swiss citizens who commenced employment up to and including 30 June 2021.  

An employer will not be liable for a civil penalty if the initial right to work checks were undertaken in line with the guidance that was in place at the time the employer made the check provided that the employer is unaware that the employee doesn’t have the right to work (see Section 2 of the Employer right to work checks supporting guidance opens in a new window ). 

For example, if you employed an EEA or Swiss citizen before 1 July 2021, as long as they presented you with a passport at the time they were employed, no further action is needed on the employer's part. 

If an employer does elect to carry out a retrospective check, it should follow the guidance (mentioned above) and should pay close attention to the code of practice for avoiding unlawful discrimination opens in a new window . If an employer becomes aware that an existing employee has not applied to the scheme, they should ensure that they follow the process mentioned below if relevant (as they may not be able to rely on any past right to work checks to gain a statutory excuse with this knowledge). 

What if an employer comes across an employee who was employed before 30 June 2021 but has not applied for the EUSS in time or at all (either through carrying out a check or otherwise)? 

There is a non-exhaustive list of reasonable grounds for missing the deadline to apply to the EU Settlement Scheme that includes matters such as mental health and medical treatment (full details are on the Home Office website).    

The UK Government guidance

As of 6 August 2021, the government announced further temporary protection for late applicants to the EUSS. This states that those who make late applications to the EU Settlement Scheme or are joining family members of those who already applied, may be able to take up new employment during the period of consideration of their application.  

1. Inform the employee they must make an application to the EUSS within 28 days. Employers should signpost them to the Home Office website.  Employers should avoid offering them any immigration advice as immigration advice is strictly regulated.
2. The employee must then provide the employer with confirmation that they have been issued with a 'digital' or 'non-digital' Certificate of Application. Upon receiving this the employer must request a right to work check from the Home Office Employer Checking Service ('ECS')opens in a new window . If the employee does not apply within 28 days, then the Home Office guidance states that the employer should take steps to cease their employment but employers should seek legal advice before doing so.
3. Once a valid application has been confirmed with the ECS, the employer should be given a Positive Verification Notice (PVN) – it is important that employers retain this along with a copy of the Certificate of Application (mentioned above) as these provide the employer with a statutory excuse for 6 months. The employee can usually continue in their employment during that time.
4. If the individual is granted status before the expiry of the PVN period, they should be able to prove their right to work using the Home Office right to work online service.
5. If they still have not been granted status after the expiry of PVN then you will need to do a follow-up check with the Employer Checking Service in order to maintain your statutory excuse. If their application is rejected, you will have to take steps to cease the employment. 

How do employers carry out Right to Work checks for new EEA and Swiss recruits? 

For EEA and Swiss citizens who begin work from 1 July 2021, employers will need to check their right to work either online or by checking the applicant's original documents where relevant. It is important for employers to know that EEA and Swiss passports can no longer be accepted for right to work documentation. If an employer does, they will not gain a statutory excuse.   

To conduct a check online (which will be relevant for any recruits who have status under the EU Settlement Scheme), an employer must access the GOV.UK service opens in a new window and enter the applicant's date of birth and right to work share code. The employer should then do the usual checks and retain evidence of this check. 

If the applicant's immigration status cannot be shared digitally, they can provide original documents instead (see section 2 of the government's guidance). 

How do I deal with a new EEA or Swiss recruit who has not applied to the EU Settlement Scheme? 

As of 6 August 2021, the government announced further temporary protection for late applicants to the EUSS. This states that those who make late applications to the EU Settlement Scheme or are joining family members of those who already applied, may be able to take up new employment during the period of consideration of their application.  

Such individuals must provide a valid Certificate of Application, and the employer should verify this using the Home Office Employer Checking Service. Until they have made a valid application and received a Certificate of Application, they will not be able to pass a right to work check. Employers should always follow the latest Home Office guidanceopens in a new window on right to work checks. 

Those who do not have are not eligible to apply under the EU Settlement Scheme will now usually require a visa to work in the UK. 

Nationals of every other country in the world require a visa if they wish to work in the United Kingdom. 

Overseas (migrant) workers must apply for their visa or permit before they travel to Scotland and the UK. If they do not have the required entry clearance documents, they can be refused entry to the UK and sent back home. 

It is important to allow adequate time for an employee's application to be processed as they will not be able to enter the country until this is complete. Applications made in some countries are frequently dealt with within a matter of weeks. In other countries they can take a couple of months. 

Employers should also ensure that they carry out the relevant right to work checks in line with the guidance for those employees with visa permission to work in the UK.  

For full details, see the employer’s guide to right to work checks on GOV.UK opens in a new window . 

An asylum seeker is a person who has made an application for asylum in the UK but whose application has yet to be decided by the Home Office. 

Most asylum seekers do not have the right to work in the UK. Only a very small number of asylum seekers will be permitted to work — in such cases it will state ‘employment permitted’ or ‘allowed to work’ on their Application Registration Card (ARC). 

Asylum seekers can apply for permission to work after their asylum claim has been outstanding for over 12 months, through no fault of their own. If they are granted permission to work, this will be limited to occupations on the shortage occupation list opens in a new window . 

Refugee status, Humanitarian Protection, Discretionary Leave 

Asylum seekers whose application for asylum (claim) is approved will be awarded Refugee status. As an employer in Scotland, you can hire a person with refugee status because they have the legal right to live and work here and the rest of the UK freely. 

Refugees who have been granted indefinite leave to enter or remain in the UK should be able to produce evidence of their right to work in accordance with the Home Office guidance. 

Those with Humanitarian Protection or Discretionary Leave to Remain are also entitled to work in the UK without restriction. 

As an employer in Scotland, you’ll need to obtain documentation to verify that the person has the right to work in Scotland and the rest of the UK.

Guidance for employers on completing right to work checks for Ukrainian nationals in the UK under the Ukrainian Sponsorship Scheme has been published on GOV.UK opens in a new window .

As an employer, you must take all reasonable steps to ensure documents provided by the person are genuine and that they relate to the applicant. 

You must check: 

• The photo is consistent with the appearance of the applicant or employee
• The date of birth is consistent across documents and corresponds with the applicant or employee’s appearance
• The document provided is valid and has not expired
• Any government endorsements (such as stamps or visas), to ensure the individual is permitted to do the specified type of work
• If accepting original documents, you should ensure that they are genuine, not tampered with and belong to the person presenting them
• In the case of two documents with different names on them, ask for a third document to explain this change. For example, a marriage certificate, divorce decree, statutory declaration of name change. 

For full details, see the employer’s guide to right to work checks on GOV.UK opens in a new window .

If you are undertaking a manual, hard copy check, you should make copies of the documents provided and sign and date them. You should retain copies of the documents securely in the employee’s personnel file for the duration of their employment and for at least two years after the employment ends.  

In the case of a passport or other travel document, the following parts must be photocopied or scanned: 

• The document’s front cover and any page containing the holder’s personal details. In particular, copy any page that provides details of nationality, photograph, date of birth, signature, date of expiry or biometric details
• Any page containing UK Government endorsements indicating that the employee has an entitlement to be in the UK and is entitled to do the work in question
• All other documents should be copied in their entirety. 

If you are undertaking an online check, or using Digital Identity Service Provider, you should retain the relevant documentation provided when undertaking the check in line with the right to work guidance. 

Where your employee cannot provide the documents from the list of acceptable right to work documents in the guidance, potentially because they have made an application for the Home Office and are waiting for their documents to be returned, you can ask the Home Office to confirm their right to work.  

The Home Office offer a free checking service for employers. If this confirms the person has a right to work, it means that you can employ them for six months before carrying out another right to work check (subject to the employee's visa not being rejected in that six months). 

If you use the Home Office checking service, you must keep copies of any correspondence you receive from them in line with the guidance to obtain a statutory excuse. 

Get full information about the Employer Checking Service on GOV.UK opens in a new window .

Not all documents are acceptable for Right to Work purposes. For full details, see the employer’s guide to right to work checks on GOV.UK opens in a new window .