EU Settlement Scheme – What you need to know as an Employer

25th November 2020

EU Settlement Scheme – What you need to know as an Employer

What is the EU Settlement Scheme?

The EU Settlement Scheme (Scheme), which was introduced by the UK Government through Appendix EU of the UK Immigration Rules, is designed to offer protection for EU nationals and their respective family member(s) in the UK in relation to their rights of residence.

The Scheme allows EU nationals and their family member(s) to apply for settled (i.e. indefinite leave to remain), or pre-settled (i.e. limited leave to remain) status, so that they may stay in the UK beyond the end of the transition period when free movement ends as a result of Brexit.

What does it mean for your organisation?

Some key considerations for employers to look into as regards the Scheme are:

  •  that there will be no change to the rights and status of EU nationals living in the UK until 30/06/21;
  • current right to work document checks continue to apply; and
  • there is a duty to not discriminate against EU nationals in light of the UK’s decision to exit the EU (this applies to prospective and current employees).

EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens.

As of 01/07/21 EU nationals and their family member(s) that wish to continue residing in the UK must hold lawful immigration status under the Scheme.

The Scheme does not apply to EU nationals with indefinite leave to remain and/or British citizenship. Irish citizens are also not subject to the Scheme.

Applying for settled status

EU nationals and their family member(s) who are living in the UK as at 31/12/20 (or when the UK leaves the EU without a deal), and have done so for five continuous years, have until the end of June 2021 to make an application to remain in the UK indefinitely.

Applying for pre-settled status

EU nationals and their family member(s) living in the UK as at 31/12/20 (or when the UK leaves the EU without a deal) that do not have the requisite continuous five years of residence, for the purposes of settled status, can apply for pre-settled status. This means that EU nationals and their family member(s) can stay in the UK until the five-year mark has been reached – at which point they will be eligible to apply for settled status.

What can you do as an organisation to ensure employees are aware and applying for the Scheme?

The UK Government has published guidance (namely the EU Settlement Scheme: Introduction for employers guidance) which makes it clear that you are not legally obliged to communicate the Scheme to employees, and in fact, it discourages you from doing so. The guidance states under the obligations as an employer section:

“It is the responsibility of the individual to make an application to the EU Settlement Scheme. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied.”

Clearly, this leaves employers with some concerns, as they will not necessarily know if an employee has applied under the Scheme and is therefore working legally in the UK. There is, however, no requirement to undertake repeat right to work checks for those EU nationals already in your employment if you already have evidence that a compliant right to work check has previously been carried out. It is therefore potentially discriminatory to ask staff for confirmation they have applied under the Scheme. More so, in asking staff for confirmation they have applied under the Scheme to then find out they haven’t done so, will of course fix you with knowledge that you are employing an illegal worker. This will mean that previous checks in relation to that employee cannot be relied upon.

For prospective employees right to work document checks will continue to apply, although again you should not ask for evidence of settled or pre-settled status. Following 01/07/21 proof of immigration status under the Scheme will become part of the Home Office’s list of acceptable documents under right to work document checks.

A key concern for employers is therefore, employing EU nationals between 01/01/21 and 30/06/21. If they entered the UK on or after 01/01/21, and do not produce a visa, then there is a risk that they are an illegal worker. Obtaining the EU national’s passport or a national ID card will continue to be sufficient to provide a statutory excuse if it turns out subsequently that the EU national is in fact an illegal worker. There is one caveat to this – where an employer cannot seek to rely on a statutory excuse if they know or have reasonable cause to believe that the EU national does not have the right to work in the UK. If an employer knows or has reason to believe that the individual entered the UK on or after 1/01/21, then they are not going to be able to rely on such right to work documentation. What remains unclear from the Government guidance is the extent to which employers are obliged (if at all) to go one step further and seek confirmation when the EU national entered the UK.

Advice for employers going forward on the Scheme

In view of the above, it seems sensible to take a pro-active approach in line with guidance that has been issued, and best practice would seem to be:

  • ensuring the workforce has up to date information on the Scheme;
  • providing workshops, presentations and information materials relating to the Scheme;
  • support applications under the Scheme (and by doing so you should have a good idea whether or not employees have applied);
  • rely on existing right to work checks for current employees;
  • request right to work documentation in the same way that you do currently for new hires, but take advice and proceed with extreme caution if you have any reason to suspect they entered the UK on or after 01/01/21;
  • only request follow up checks for existing EU employees after 01/07/21 if you have reasonable grounds to believe or have a reasonable suspicion that an employee has not made an application under the Scheme (whether successful or not); and
  • continuing to monitor Government guidance on the Scheme.

We are assisting employers during this period of change by providing guidance on their duties and how best to navigate through the Scheme’s implementation.

If you have any queries on the Scheme and what this may mean for your organisation then please do contact Marie Allen or Elizabeth Clazie for advice at employment@gotelee.co.uk.

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