The 30 June 2021 deadline for applications under the EU Settlement Scheme (the Scheme) is fast approaching. There are also a number of other upcoming developments in relation to EU, EEA and Swiss nationals (European nationals) and their family members which employers should be aware of. We consider these in more detail below.
Free movement under EU law ended on 31 December 2020 and there are now different immigration rules applicable to European nationals depending on whether the European national first arrived in the UK before or after 31 December 2020.
Deadline to apply under the EU Settlement Scheme – EEA/Swiss nationals and family members who entered the UK before 11pm on 31 December 2020
In most cases these individuals will need to apply for pre-settled or settled status under the Scheme by 30 June 2021 in order to continue to live and work in the UK long term. Individuals who have been "continuously resident" in the UK for at least five years should be eligible for settled status. If the individual has been in the UK for less than five years, they should be granted pre-settled status.
As the deadline for applications under the Scheme is fast approaching employers should encourage their existing European workforce to apply and emphasise that they must apply for pre-settled or settled status before the 30 June 2021 deadline. If they have not done so, it is likely they will be in the UK illegally after 30 June 2021 and as an employer you may not be able to continue to employ them after that date.
Employers should also encourage European nationals and family members to inform their employer if they have been granted settled or pre-settled status.
European nationals and family members who first arrived in the UK after 11pm on 31 December 2020
Importantly, these individuals will not usually be able to apply under the Scheme. In order to live and work in the UK they will usually need to apply under the new Immigration Rules.
End of the grace period – right to work checks
We recommend that employers carry out right to work checks before an employee starts work. These checks are important because they mean that, provided the check is undertaken correctly before the employee starts their employment, the employer should have a statutory excuse against a civil penalty of up to £20,000 if it is later discovered that the person is working in the UK illegally. Further, if employers are not carrying out right to work checks correctly the Home Office may take compliance action if the employer is a sponsor
Since 1 January 2021 there has been a grace period for employers in respect of right to work checks which means that an employer is currently able to establish a statutory excuse against a civil penalty by simply checking a European national’s passport or national identity card before their employment starts. This grace period comes to an end on 30 June 2021.
However, as discussed below, employers should be aware that this does not necessarily mean that the individual actually has the right to work in the UK. If they first arrived in the UK after 31 December 2020 they will usually need immigration permission to be able to live and work in the UK.
From 1 July 2021, right to work checks for European nationals will change and evidence of UK immigration status will be required – in most cases by the employer using the Home Office’s online service. We are awaiting new guidance to be published from 1 July 2021 and will update employers on this in due course.
Employees starting work in the UK on or after 1 January 2021 and before 1 July 2021
Although the current Home Office guidance states that, during the six month grace period, employers are not expected to differentiate between European nationals who arrived by 31 December 2020 and those who arrived on or after 1 January 2021, employers should take care when hiring European nationals who start work before 30 June 2021. By just looking at a passport or national identity card you will not know if the individual originally entered the UK before, on or after 31 December 2020. Employers should be aware that there is a risk that the individual may not, in fact, have the right to work if they first arrived in the UK after 31 December 2020.
When carrying out the right to work check, if an employer "blindly" copied a document and relied on this it could later come to light that the individual does not in fact have the right to work in the UK. In particular, where an employer knows or has reasonable cause to believe the individual does not have the right to work in the UK, in the worst case scenario they can be the subject of criminal prosecution. For example, if there is an email on the file showing that the employer knows the European national arrived in the UK for the first time after 31 December 2020, simply copying the passport or national identity card will not in our view provide a defence against prosecution and possibly may not provide a statutory excuse against a civil penalty.
At the very least, during the grace period we suggest employers ask European nationals when they first arrived in the UK to work out if this was before or after the end of the Brexit transition period. If they arrived after 31 December 2020 we recommend you ask for and obtain evidence of their immigration permission giving them the right to work. Otherwise it is likely you will need to sponsor them.
If they arrived before 1 January 2021 you should encourage them to provide details of their settled or pre-settled status if they have already applied under the Scheme or remind them they must apply by 30 June 2021. Employers can use the online checking service to confirm that an employee or applicant has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, employees and applicants do not have to agree to share their status using the online checking service.
Introduction of border checks for EU nationals
With the end of free movement, EEA and Swiss nationals who first arrive in the UK after 11pm on 31 December 2020 need to qualify to enter the UK. Assuming they do not already have or are not eligible to apply for pre-settled or settled or status, in order to live and work in the UK they will need to apply under the new Immigration Rules.
Alternatively, for visits to the UK, EEA and Swiss nationals can simply travel to the UK and seek permission to enter as a visitor at the border. In particular, for entry to the UK as a business visitor, individuals are only permitted to carry out limited activities that fall outside of working in the UK, otherwise prior immigration permission will be required. They will also need to demonstrate that they are a genuine visitor, will not be based in the UK and will not be working in the UK, will remain employed overseas, have sufficient funds to support themselves during their stay and will leave at the end of their visit.
To date, due to the grace period there have been little or no checks of European nationals’ immigration status upon arrival in the UK. However, these checks are expected to commence from 1 July 2021. It is unclear whether immigration officials will have the ability to check whether someone has status under the EU Settlement Scheme due to IT issues. We therefore recommend that EEA/Swiss nationals and family members print out evidence of this status before travelling and carry this with them.
Comment
For European nationals, border checks and being questioned on the reasons why they wish to enter the UK will be a new experience. Despite only limited checks to date, there has already been an increase in the number of EEA/Swiss nationals being denied entry to the UK and in a number of cases even being detained. This marks a significant shift in this initial post-Brexit immigration period and how European nationals wanting to visit the UK are treated. Individuals can expect to continue to see more questions being asked going forward about the purposes of their visits and what they intend to do while in the UK. It’s therefore key for individuals and businesses to ensure that European nationals do indeed qualify to come to the UK to avoid being turned away at the border.
Kerry Garcia
Nyasha Gardner