To continue to live and work in the UK (post Brexit), EU nationals and their family members who arrived in the UK on or before 31 December 2020 must apply for “pre-settled” or “settled status” by 30 June 2021. This deadline is fast approaching.
But what does this mean for employers and their EU national employees and workers?
What must EU nationals do?
In short, all EU national employees and workers must apply now under the EU Settlement Scheme (“the Scheme”) for pre-settled or settled status. See below for the link to the Government website:
If any EU nationals do not apply by the deadline, they may be deemed to be in the UK illegally and, as a result, employers may not be able to continue to employ them lawfully.
As such, it is important to encourage staff to apply, where necessary. Whilst the information from the Government with regards to EU nationals remaining in the UK without settled or pre-settled status is not very clear at the moment, we hope it will be clarified shortly.
What is the difference between “pre-settled” and “settled status”?
- EU nationals who have had continuous residence in the UK for five years or more should be eligible for settled status.
There are some exceptions to ‘continuous residence’ such as having to leave the UK to undertake compulsory military service or for family illness.
Where granted, an individual can stay in the UK for as long as they like and can apply for British citizenship, usually after 12 months, where eligible.
- EU nationals who have been in the UK for less than five years should be eligible for pre-settled status.
Where granted, an individual can usually stay in the UK for a further 5 years. An application for settled status can be made once an individual has been in the UK for 5 continuous years from the day they first arrived in the UK (which has to be before 31 December 2020) and must be made prior to pre-settled status expiring.
What does this mean for employers?
As is the current situation, employers must check an individual’s right to work in the UK prior to them commencing work. Employers must also keep a record of the individual’s passport, visa, work permit etc.
From 1 July 2021, however, employers will need to include EU nationals in these pre-employment checks. This was not previously required.
What should employers be doing now?
- Employers should encourage their EU national employees and workers to apply under the Scheme before 30 June 2021.
We would suggest issuing a memo, putting up posters or sending emails to remind staff. It may also be an idea to provide assistance to staff with their applications, where needed.
- Employers should also ask their EU national employees and workers for confirmation that they have applied and, thereafter, what status they have been granted i.e. settled or pre-settled status.
- Where settled or pre-settled status has been granted, employers can undertake a check online by asking the individual for a ‘share code’, as follows:
- Employers should also keep a record of when any pre-settled status expires.
Please note: an email or letter the individual receives from the Home Office is not sufficient evidence to prove an individual’s status.
Please also note: Although employers are not required to carry out retrospective right to work checks on individuals who started work prior to 1 July 2021, employers should consider doing so to satisfy themselves that all of their EU national employees and workers have the right to stay and work in the UK. This will ensure that you are not continuing to employ or engage any individuals who do not have the right to work in the UK i.e. those without pre-settled or settled status or those who came to the UK after 31 December 2020.
If an individual first arrived in the UK after 31 December 2020, the individual will usually require immigration permission to live and work in the UK.
Right to work in the UK – 1 July 2021 onwards – Consequences of getting it wrong?
The Home Office carries out checks to ensure that employers are undertaking immigration checks correctly and keeping the necessary records. Failure to do so can result in significant fines of £20,000.
If employers are not carrying out right to work checks correctly the Home Office may also take compliance action if the employer is a sponsor.
Directors or others responsible within organisations can be sent to jail for 5 years and be required to pay an unlimited fine, if found guilty of employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK. This includes, for example, if you had any reason to believe that the individual:
- did not have leave (permission) to enter or remain in the UK;
- had leave, but it had expired;
- was not allowed to do certain types of work; and/or
- had papers which were incorrect or false.
It is not sufficient to see only an individual’s passport or ID cards. Employers will need to see evidence of pre-settled or settled status (as set out above) and undertake checks to confirm their validity (see above for the link for an individual to obtain a share code which allows employers to carry out online checks).