The deadline for applications under the EU Settlement Scheme (the Scheme) was 30 June 2021. But what if it comes to light that an employee has not submitted their application by the deadline?
Transitional measures
The updated employer guidance on right to work checks states that "transitional measures" will be in place until 31 December 2021 to potentially assist existing employees who have not applied under the Scheme by 30 June 2021. This only applies to employees whose employment began by 30 June 2021. These measures mean that the employer may not need to terminate the employment of an employee if it discovers that the employee has not applied to secure their status under the Scheme.
What must the employer do?
If an employer discovers that any employee whose employment with the employer began by 30 June 2021 has not applied under the Scheme, the employer should:
- Advise the employee that they must make an application under the Scheme within 28 days and that the employee must then provide the employer with a Certificate of Application (CoA) or an email or letter from UK Visas & Immigration confirming receipt of their application; and
- On receipt of the CoA from the employee, use the Home Office Employer Checking Service (ECS) to confirm that the application under the Scheme has been made – available at www.gov.uk/employee-immigration-employment-status. If the application has been submitted, the employer should receive a Positive Verification Notice (PVN). This is not a decision on the employee’s application but it confirms that the individual has the right to work whilst the application is being processed. The employer must retain the PVN, together with the CoA or other evidence of the application under the Scheme and the initial right to work check. Importantly, the PVN also gives the employer a statutory excuse against the civil penalty (of up to £20,000 per illegal worker) in respect of the individual’s right to work for 6 months, provided that the employer also carried out a compliant right to work check before the employee’ s employment began; and
- Ask the employee to notify the employer as soon as they receive the decision from the Home Office on their application.
If the PVN is due to expire while the employee’s application under the Scheme is still outstanding, the employer must make a follow up check using the ECS in order to maintain its statutory excuse. If the follow up check reveals:
- That the employee’s application is still pending, the PVN will then be extended for a further six months. The employer must keep a copy of the PVN; or
- That the employee’s application has been refused, the PVN will not be extended and the employer may need to take steps to terminate the employee’s employment. Employers should take advice before terminating the employee’s employment.
What if the Home Office identifies that an employee has not applied under the Scheme before the employer becomes aware of this?
The Home Office will give EEA nationals or their family members a written 28-day notice before action is taken. This will give the individual concerned the opportunity to make an application under the Scheme as outlined above, although it cannot be guaranteed that this will be accepted, as this depends on the reasons for missing the deadline.
Does the transitional period for employers and employees set out above apply to EEA nationals whose employment commences on or after 1 July 2021?
No, it does not apply to EEA nationals whose employment commences on or after 1 July 2021. If the individual has not applied under the Scheme and cannot provide evidence of their immigration status in the UK it is likely that they would be working illegally if the employer were to proceed to employ them. Employers should take advice as they may need to withdraw the offer of employment. However, before doing so, employers should consider if there is any way in which the employee may be able to obtain immigration permission. For example, it may be possible for the employer to sponsor the individual as a Skilled Worker.
Kerry Garcia