11 December 2020

EU Settlement Scheme: what do employers need to know?


Although the rights and status of EU, EEA and Swiss citizens living in the UK will remain the same until 30 June 2021, individuals should take steps now to apply to the EU Settlement Scheme to see how they can continue living and working in the UK after 30 June 2021. To help you prepare, we have answered some key questions on settled status, pre-settled status and what it means for you as an employer.

What is settled status?

Individuals will usually receive settled status if they’ve started living in the UK by 31 December 2020 and lived in the UK for a continuous 5-year period (known as ‘continuous residence’). Individuals can stay in the UK as long as they like if they have settled status.

What is pre-settled status?

If an individual does not have 5 years’ continuous residence when they apply, they will usually receive pre-settled status. They must have started living in the UK by 31 December 2020 and can then stay in the UK for a further 5 years from the date they get pre-settled status.

How do I deal with EEA/Swiss employees who do not have settled or pre-settled status yet? When is the deadline?

Encourage them and offer them assistance to apply before the cut-off date of 30 June 2021. The Home Office has said that it will not accept applications after that date unless there are exceptional circumstances.

From 31 December 2020, EEA/Swiss citizens may be asked to prove their status at the UK border, or if they need to open a bank account, rent a property or access the NHS. They may encounter difficulties in accessing services and employment after that date.

If they do not apply for status by 30 June 2021, they will lose their right to live and work in the UK unless they obtain an alternative visa. If they have applied but their application is still pending, you can request a copy of their certificate of application (issued within the last 6 months) or use the online checking service.

What are the requirements for pre-settled and settled status?

The person must be resident in the UK before 31 December 2020.

To be eligible for pre-settled status, they must have spent at least one day in the UK in the previous 6 months.

To be eligible for settled status, they must have resided in the UK for a continuous period of at least 5 years, and 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.

What does it mean if an employee only has pre-settled status?

Pre-settled status is granted for 5 years from the date the application is approved.

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, otherwise they will lose the right to live and work in the UK.

If they are absent from the UK for a period of two consecutive years they will lose their pre-settled status, and would then need an alternative visa if they were to return to the UK to work or to stay for longer than 6 months.

Can employers insist that their employees apply for settled or pre-settled status or remind them to do so?

An employer can remind staff to apply for settled or pre-settled status under the EU Settlement Scheme, but cannot insist that they do so and cannot insist on receiving proof of status for existing employees and any new hires until after 30 June 2021. Until then, their EEA/Swiss passport, or a residence permit issued to them as a family member of an EEA or Swiss national, is sufficient proof of their right to work.

Employers should also take care not to be too heavy handed in the approach to reminding employees about settled status and should take care not to act in a discriminatory fashion when sending out reminders (see further below).

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

Settled and pre-settled status are a digital-only status, meaning that no residence card or passport stamp is issued to EEA/Swiss nationals, and their Status Outcome letter is not proof of status. The Home Office is pioneering this digital-only system with the EU Settlement Scheme, and digital-only systems may be rolled out to some other UK immigration visas from 2021.

Employers can check EEA/Swiss employees’ status by using the online checking service. In addition, employees with settled or pre-settled status can generate a digital code and email it to their employer or prospective employer.

Their non-EEA/Swiss family members, however, will continue to be issued biometric residence permits. Some family members have a residence permit under the old EEA regulations, and they will be reissued a new residence permit under the EU Settlement Scheme once they have been granted status.

If we just ask all of our EEA/Swiss employees to re-prove the right to work after 30 June 2021, is that discriminatory?

It could be indirectly discriminatory to target only EEA/Swiss nationals in this way, but offering them encouragement and assistance to apply for status would be justifiable, given that the EU Settlement Scheme may be your employees’ best or only way to secure their right to work in the UK. We recommend that you audit your employee records now, and after 30 June 2021 re-check any staff whose nationality or immigration status has not been ascertained and duly recorded. You should not target only recent hires (or exclude longer servers) and should not only target some nationalities and not others.

What do I need to do if I am hiring an EEA/Swiss national between 1 January 2021 and 30 June 2021?

You should check whether they were resident in the UK by 31 December 2020. If they were resident by then, they have until 30 June 2021 to apply for status. Proof of residence could include a tenancy agreement, utility bill or other official correspondence addressed to them in the UK, dated prior to 1 January 2021. A full list of acceptable evidence is available online.

In the meantime, they can rely on their EEA/Swiss passport or biometric EEA/Swiss National ID card to prove their right to work in the UK.

If they move to the UK after 31 December 2020, and have no prior residence in the UK, they will need to obtain a visa which enables them to work in the UK (see further below).

Some EEA/Swiss Nationals who have lived in the UK in the past, for at least 5 continuous years, may be entitled to settled status, and therefore you should enquire whether prospective employees have previously lived in the UK.

If their partner is a British citizen or settled in the UK, or has status under the EU Settlement Scheme, they could obtain a visa as a family member. In most other cases they will need a work visa under the Points Based System, for which employers must hold a sponsor licence.

What do I need to do if I want to hire an EEA/Swiss national after 30 June 2021 when they do not have and are not eligible for status under the EU Settlement Scheme?

After 30 June 2021, if an EEA/Swiss citizen does not have settled or pre-settled status, or otherwise have the right of abode in the UK or are also a British or Irish national (see further below), they must obtain a visa before they start working for you.

Employers who recruit globally or have an international work force will probably need to obtain work visas for their international employees, for which they must first obtain a sponsor licence. Employers are advised to obtain a sponsor licence in good time, as the application process can take 3 to 4 months between requesting a licence and the employee being granted a visa.

Applying for a sponsor licence will often trigger a compliance visit to an employer’s premises by the Home Office, so before applying for a sponsor licence, employers should audit their workforce to ensure that all employees have the right to work, and that recruitment processes, management and record keeping are compliant with right to work legislation. Employers should ensure that right to work documentation is being retained across the board, and that the correct procedures are in place, before a compliance visit is made.

The Home Office is making some allowances for absences caused by Covid, but if a person has exceeded the number of permitted absences you should seek further advice as they will be treated on a case by case basis by the Home Office.

What about dual nationals?

An EEA/Swiss national who is also a British or Irish citizen, for example by naturalisation or birth, or who has the right of abode in the UK, is not required to have a visa.

You can check this by seeing their British or Irish passport, or a vignette in their passport stating that they have the right of abode in the UK. If they don’t have a passport, a list of acceptable documents is available online.

If you have any additional questions or would like further guidance on any of the above guidelines, please do get in touch with a member of our employment or immigration teams.

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