EU Settlement Scheme

As the EU Settlement Scheme deadline looms, what do employers need to know? 

On 31 December 2020 the UK left the EU. This triggered the end of freedom of movement which had allowed EU citizens to live and work in the UK. Following the end of free movement, the Withdrawal Agreement provided a grace period to allow citizens of European Economic Area (EEA) countries to secure their residence in the UK by applying to the EU Settlement Scheme (EUSS).

Eligible EEA citizens and their families must apply to the EUSS by 30 June 2021 in order to secure the right to continue to live and work in the UK. EU, EEA and Swiss citizens who fail to apply before the deadline will lose their right to apply and may lose their right to work in the UK from 1 July 2021. After 1 July 2021 EU, EEA and Swiss citizens will be treated the same as other foreign citizens for immigration and right to work purposes.

Who should apply?

EEA citizens and their family members who were living in the UK on 31 December 2020 may be eligible to apply under the EUSS. In some circumstances EEA citizens living outside the UK may also be eligible if they had been resident in the UK for 5 continuous years prior to 31 December 2020 (so long as they have not been absent from the UK for over 5 years). Irish citizens or those with British Citizenship do not need to apply. More information about eligibility can be found at https://www.gov.uk/settled-status-eu-citizens-families/eligibility.

EEA citizens who do not qualify for the EUSS (or whose applications are unsuccessful) will need to ensure their residence in the UK is lawful under the UK’s new points based immigration system. Frontier worker permits and sponsored work visas have strict requirements so not all employees will be eligible to apply and work visas come with significant sponsorship costs for employers.

How to apply

The application is free and can be completed online. Applicants will need to evidence their residence in the UK, further information on the evidence needed is available on the government website.

EEA citizens who do not apply to the EUSS will not be lawfully resident in the UK from 1 July 2021. The Home Office may accept late applications at its own discretion but it is unknown how generous they will be. EEA citizens who have not applied will also need to ensure their residence in the UK is permitted under the new immigration system.  If all eligible staff successfully apply to the EUSS, employers are saved the costs associated with sponsoring employee’s work visas.

What does a successful EUSS application mean?

Successful applicants will be granted Settled status or Pre-settled status depending on how long they have lived in the UK.

Settled status equates to the right to remain in the UK indefinitely. EEA citizens who have been resident in the UK for five continuous years (spending at least 6 months of each year in the UK) will be entitled to apply for settled status. If their application is successful they will retain settled status provided they do not leave the UK for a period of more than 5 years at a time.

Pre-settled status equates to up to 5 years leave to remain in the UK. EEA citizens who have been resident in the UK for less than 5 years will be entitled to apply for pre-settled status. Successful applicants must apply for settled status before their 5 years leave expires and can lose their status if they leave the UK for more than 2 years.

Successful applicants for settled or pre-settled status will be entitled to live, work and study in the UK, to use the NHS, to access public funds such as benefits or pensions, and to travel in and out of the UK.

What do employers need to do before the deadline?

Employers should:

Make employees aware of the 30 June 2021 deadline and how to apply. Employers have no legal obligation to inform staff about the EUSS or to encourage staff to apply but employers will benefit from eligible staff applying. Employers should avoid targeting EEA citizens so any notification of the deadline should be sent to all employees e.g. a company wide email or notices around the workplace. The government’s employer toolkit provides a range of useful resources: https://www.gov.uk/government/collections/eu-settlement-scheme-employer-toolkit

1. Consider any potential impact on staffing. Employers may wish to identify how much of the workforce will be impacted by the changes to residence status and the need to apply to the EUSS. Employers could also identify any EEA staff who live overseas but visit the UK to work to consider whether they will need to or be eligible to apply for a visa before their next visit.
2. Ensure they are familiar with the visa sponsorship process. Any employees hired from outside the UK will need to apply for a visa under the UK’s new immigration system. Employers need to be a licensed sponsor to hire eligible employees from outside the UK on a work visa.
3. Be familiar with the updated right to work checks. EEA citizens are currently able to evidence their right to work with their passport (until 30 June 2021) but the right to work checks for EEA citizens will change under the new immigration system.

Employers should not:

1. Check whether employees have applied to the EUSS. Staff have no duty to inform their employer that they have applied to the EUSS or whether their application has been successful. Employers can invite employees to volunteer the information and volunteered information may help employers to assess potential visa sponsorship costs.
2. Force their employees to apply to the EUSS.
3. Discriminate against employees or prospective employees who are EU, EEA or Swiss citizens as a result of Brexit. Any decisions regarding job offers or continued employment should not be dependent on the individual having applied to the EUSS as this may amount to race discrimination.
4. Give their employees immigration advice or advice about the EUSS (unless they are qualified to).

If you require any further information on the above developments please do not hesitate to get in contact with one of our employment experts below.