The EU Settlement Scheme – what now?

You may have seen our blog from early December 2021, in which we highlighted imminent changes to immigration rules for EU, EEA and Swiss citizens living in the UK. These changes will take effect after 30 June 2021.

To briefly summarise, a new “EU Settlement Scheme” now determines how EU, EEA and Swiss citizens (referred to in this blog as “EU nationals”) can continue living and working in the UK beyond this date. The right of Irish citizens to live and work in the UK is not affected by the new immigration rules within the UK.

Under the EU Settlement Scheme, individuals with either “settled status” or “pre-settled status” will retain the right to live and work in the UK after 30 June 2021.

But what do these terms mean and how is “settled status” or “pre-settled status” attained?

What is settled status and who is eligible?

EU nationals who started living in the UK by 31 December 2020 and have done so continuously 5-year period will be entitled to receive settled status, provided that they have spent no more than 6 months (180 days) outside the UK in any 12 month period (save for a single absence of up to 12 months due to a work placement, study or serious medical condition).

Settled status enables individuals to stay in the UK as long as they like.

What is pre-settled status and who is eligible?

Any EU nationals who started living the UK by 31 December 2020 but who have not yet achieved 5 years’ continuous residence in the UK (and are therefore unable to receive settled status) are entitled to receive pre-settled status, provided that they have spent at least one day in the UK in the previous 6 months.

Pre-settled status entitles the individual to stay in the UK for a further 5 years from the date they receive pre-settled status.

Individuals with pre-settled status may apply to convert their pre-settled status to full settled status upon achieving 5 years’ continuous residence in the UK.

Pre-settled status cannot be extended. If an employee does not meet the requirements for settled status, they will need to apply for an alternative visa before their pre-settled status expires. IF they do not, they will lose the right to live and work in the UK. Similarly, anyone who leaves the UK for a period of two consecutive years will lose their pre-settled status and would also need an alternative visa if they were to return to the UK to work or to stay for longer than 6 months. 

How should employers deal with EU nationals employed in the UK who do not have settled or pre-settled status yet?

Employers may encourage its employees from the EU to apply for either settled or pre-settled status before the cut-off date of 30 June 2021. This deadline is strict and the Home Office has indicated that late applications will not be accepted unless there are exceptional circumstances.

Employees who do not apply for either settled or pre-settled status by 30 June 2021 will lose their right to live and work in the UK unless they obtain an alternative visa. Employers can request a copy of the certificate of application (if this has been issued within the last 6 months) or use the Government’s online checking service in respect of any employees whose their application is still pending.

Can I insist that my employees apply for settled or pre-settled status?

Employers cannot insist that its employees apply for settled or pre-settled status, nor can it insist on receiving proof of status for existing employees and any new hires until after 30 June 2021. Until then, their EU passport is sufficient proof of their right to work.

Employers can remind its employees to apply for settled or pre-settled status under the EU Settlement Scheme but not to be too heavy handed (or discriminatory) in their approach.

Employers should be mindful that it could be indirectly discriminatory to specifically ask only EU nationals to re-prove their right to work in the UK after 30 June 2021. However, offering such staff assistance and encouragement to make an application through the EU Settlement Scheme would likely be justifiable, given that this is the likely to me an individual’s best way of retaining a right to work in the UK following 30 June 2021.

After 30 June 2021, how can I check if an EEA/Swiss national has the right to work in the UK?

Firstly, it would be good practice for employers to audit their employee records now and then, after 30 June 2021, re-check any staff whose nationality or immigration status has not been confirmed. In doing so, however, employers should avoid targeting only new recruits (or excluding longer servers) and should not simply target some nationalities and not others, in order to minimise the risk of discrimination claims.

Employers can check EU employees’ status by using the Government’s online checking service. From the employee side, employees with settled or pre-settled status can obtain a digital code and provide this to their employer to confirm their status.

What if I recruit an EU national between 1 January 2021 and 30 June 2021?

Employers should check whether the new recruit was resident in the UK by 31 December 2020 and, if so, encourage and assist them to apply for the appropriate status under the EU Settlement Scheme by 30 June 2021.

In the meantime, EU nationals can continue to use their passport or ID cards as proof of their right to work in the UK.

If the employee moved to the UK after 31 December 2020 and has no prior residence in the UK, they will need to obtain a visa in order to continue to work beyond 320 June 2021.

There are other potential options for EU nationals who move to the UK after 31 December 2020. For example, if they have lived in the UK for at least 5 continuous years they may be entitled to settled status. Alternatively, if their partner is a British citizen or has status under the EU Settlement Scheme, they could obtain a visa as a family member, although this is likely to depend on the precise circumstances of their situation so specific advice should be sought if this is identified as a possible option. EU nationals who are also UK or Irish nationals will be exempt from the requirement to hold a work visa.

In most other situations, EU nationals without status under the EU Settlement Scheme or another route to a VISA (such as through a family member as referred to above), will need a work visa under the UK’s new “Points Based System” in order to work beyond 30 June 2021. Employers who employee EU nationals under the Points Based System will need to hold a sponsor licence.

Can I hire, or continue to employ, EU nationals after 30 June 2021 if they do not have and are not eligible for status under the EU Settlement Scheme?

As mentioned above, EU nationals without status under the EU Settlement Scheme will need a work visa in order to continue to work in the UK after 30 June 2021. This therefore means that any employer who wishes to recruit, or continue to employ, EU nationals after 30 June 2021 will need to hold a sponsorship licence.

Employers who wish to apply for a sponsor licence should do so in good time before 30 June 2021, to guard against delays in the application process. It is currently anticipated that it may take 3 to 4 months between submitting an application for a sponsorship licence and a visa being granted to the employee.

What if I need asisstance help?

If you would like to discuss any of the issues raised in this blog, please get in touch with the MLP Law Employment team on 0161 926 9969, employment@mlplaw.co.uk or @HRHeroUK on Twitter.