Stephanie Dare, a lawyer at Clifford Chance, analyses the government’s new EU settlement Scheme and asks what steps businesses employing EU nationals should be taking.
Following the UK’s departure from the EU on 31 January 2020, many employers and employees will have concerns about their immigration status. Here is an overview of key concerns that UK businesses and their employees may have, suggestions that may help with any immediate questions, and a brief overview of what to expect in the next 12 months.
The first area of concern relates to individuals living and working in the UK. For EU migrants and their family members that are currently in the UK, the ‘EU Settlement Scheme’ has been provided by the Home Office as a route to living and working in the UK beyond 31 December 2020. This scheme gives EU nationals and their families the same rights of work and residence that they currently enjoy under the EU’s freedom of movement provisions (for these purposes, EU nationals include EEA and Swiss nationals).
It is free to apply for status under this scheme. Applications can be made from the UK or outside of the UK, via an app, a web browser, or on paper. Successful applicants will receive either settled or pre-settled status and there are differences in eligibility between the two.
EU nationals and certain family members can apply for ‘settled’ status under this Scheme if they have been living in the UK continuously for five years and meet all other eligibility requirements. EU nationals and certain family members that were in the UK before Brexit or that arrive during the transitional period, but have not yet lived in the UK for the five years necessary for ‘settled’ status, can apply for ‘pre-settled’ status. This status grants permission to stay in the UK for a further five years, thus providing the option to apply for settled status in the future once eligible.
Currently, the deadline to apply for status under this Scheme is 30 June 2021, and the deadline to have had to be in the UK to have the option to apply is 31 December 2020.
A number of issues arise. Holders of Permanent Residence may not realise that they still need to apply for status under the Settlement Scheme (their status does not automatically switch, they still need to apply). Applicants may think they have submitted an application, but not realise they still have documents to upload, or that the Home Office have contacted then to request further information/documents. Applicants may be granted Pre-Settled Status, when in fact they are entitled to and intended to apply for Settled Status, but selecting the wrong option when applying.
EU migrants and their eligible family members may be unaware that they need to apply, or of the deadlines.
The above issues may cause EU migrants and their family members to face difficulty in the future when re-entering the UK, opening a bank account, renting a property, having/demonstrating the right to work in the UK, and so on.
The second area of concern relates to businesses preparing for the end of the transition period. Employers can undertake an internal audit of their workforce to identify which workers rely on the UK’s membership to the EU to work in the UK. This will help identify possible areas of vulnerability. Once the audit is complete, employers may wish to determine their policy on the level of support they intend to provide to their workforce. This policy should be kept under review.
Although not mandatory, employers can reach out to their workforce with information and support on applying for pre-settled or settled status. Providing support can encourage your workforce to apply, and also reduce the number issues mentioned above.
Employers can also (where possible) ensure that new appointments of workers from the EU are finalised before the end of the transition period on 31 December 2020 (unless of course this deadline is extended).
The third area of concern related to ‘Right to Work’ checks. Many employers are concerned about the continuing Right to Work of their existing employees, and also about completing right to work checks for EU nationals that they recruit post Brexit.
All employers must take reasonable steps to satisfy themselves that an individual is not disqualified from carrying out the work in question. They can do so by completing a ‘Right to Work’ check of an individual’s immigration status, which is a check of their immigration status. This check must be completed prior to the commencement of their employment, and again before any relevant expiry dates.
In the event it is found that an individual did or does not have the right to do the work in question, provided the employer conducted the right to work check correctly, the employer will have a statutory excuse against a civil penalty for that illegal worker, starting from the date the check was completed.
When it comes to Brexit, the government has determined that, until the end of December 2020, it will not ask employers to distinguish between which EU citizens were resident in the UK before or after the UK’s exit from the EU. This is to ensure that EU citizens and their family members who are eligible under the EU settlement scheme have a reasonable opportunity to apply for and be granted status.
As such, and until 2021, EU citizens will be able to continue to exercise their right to work in the UK by using their passport or national identity card and non-EU family members will be able to use their biometric residence documents.
What happens next? A new immigration system will be phased-in and in-place by 1 January 2021. As such, EU nationals arriving after midnight on 31 December 2020 would need to meet the requirements of this new immigration system. Whilst the details have not been finalised, the Government has announced that that the new immigration system will include a number of key features including one system for all nationalities, which means there will no longer be separate systems for EU nationals and non-EU nationals. Everyone (apart from British and Irish nationals) will be required to obtain permission if they want to come to the UK and to work or study. Skilled migrants will be prioritised and the cap on skilled migrants will be removed. The monthly Restricted Certificate of Sponsorship panel meeting will be scrapped. The Resident Labour Market Test will no longer be required. There will be a transitional and temporary short-term workers’ route. An EU-Youth Mobility Scheme route will be created. It will be similar to the current Youth Mobility Scheme which allows 18-30 year olds to come to the UK for two years, during which they can work and/or study. The current routes for Innovators, Exceptional Talent, Investors and temporary workers will be adapted from the current system.
The new legislation is unlikely to impact those entering the UK for a holiday or a business trip, but those entering to work or study in the UK may need to apply for a visa under UK domestic laws, in the same way as non-EU nationals.
For how to complete right to work checks, the UK Government has provided that nothing is changing until the new single immigration system is introduced in 2021, after which employers will need to check EU citizens’ right to work by using the Home Office’s digital status checker. This requirement will only apply to new recruits who are employed from the date of introduction, not retrospectively.
In the first post-Brexit immigration change, a new “Global Talent Visa” has been announced. A new, fast-track visa scheme, which is intended to attract the world’s top scientists, researchers and mathematicians, will open on 20 February 2020. This will be a bespoke ‘Global Talent’ route and will replace the Tier 1 (Exceptional Talent) route. For the first time, the UK Research and Innovation (UKRI) will endorse applicants from the scientific and research community. Advantages of this new route include (i) applicants not needing an offer of employment before arriving, (ii) successful applicants have the option of an accelerated path to settlement, and (iii) researchers enjoying exemptions from the existing absences when they are overseas for work-related purposes.
In this period of great change, it would be sensible for employers to ensure their recruitment practices, HR systems, record keeping practices, and internal policies are up to date and in line with current immigration laws. It is not unusual for changes to immigration laws to be made at short notice, and taking proactive steps now means that employers will hopefully be able to readily and easily adapt to any changes that come their way.
Stephanie Dare is an immigration lawyer at Clifford Chance.