Time short for EU Settlement Scheme applications

30 June is deadline day for the EU Settlement Scheme. It is the reason why employers are now urgently reviewing whether any of their existing employees need to make applications to remain eligible to continue living and working in the UK beyond that date. 

This is, of course, all linked to Brexit. The UK left the EU on 31 January 2020, triggering an end to freedom of movement which EU citizens had previously enjoyed and which enabled them to move to the UK to live and work unhindered. The Withdrawal Agreement did provide a grace period for citizens from countries within the EEA, allowing them to cement their residence status in the UK via the scheme. However, with a few limited exceptions, applications to the scheme by eligible EEA nationals and their family members must be submitted by the end of this month to secure a continued right to live and work in the UK beyond that date.

The process itself is relatively straight-forward and is free. The application can be submitted online via the Government’s website and, in most cases, involves simply scanning the applicant’s passport chip. The big issue, however, is spotting who needs to go through that process and getting it done before the deadline. 

So, let’s hear more about it. I phoned immigration expert Jo Hennessy and started by asking about that 30 June deadline: 

Jo Hennessy: “Yes, so it's really important that people do apply comfortably within the deadline and we recommend that they apply as early as they can so if there is any issue and they need to reapply, because there are quite limited kind of options for seeking redress if you don't agree with the decision issued in their application, they want to have an opportunity to apply again, within that deadline if needs be if somebody doesn't apply on time. Late applications may be accepted by the Home Office but it's very much at their discretion to do so and if they feel they've got strong grounds, reasonable grounds, for missing that deadline and the person hasn't been delayed further unnecessarily. So there isn’t any guarantee that discretion would be exercised except a late application and the risk then is anybody that  NB who doesn't apply by the 30 June deadline will no longer be lawfully resident in the UK which would obviously have quite significant repercussions for their ability to live and work in the UK going forward.”

Joe Glavina: “Jo, what about EEA staff who do not qualify for the scheme?”

Jo Hennessy: “For the vast majority of people that don't qualify under the EU Settlement Scheme, they're most likely going to need to have sponsored work visas to live and work in the UK. So, for the majority of them employers will need to have our sponsor licence first of all, and they'll then need to qualify for one of the sponsored visa routes and they have quite strict requirements about skill level, salary level, English language, for example, or continuous service overseas, depending upon the specific route that they come under. It'll also mean they need to have a job offer in the UK and there's quite a significant level of cost and bureaucracy and compliance that goes with that for employers in the UK as well. There may be some people who would qualify for another option under the Withdrawal Agreement, which is the Frontier Worker Permit route and that's aimed at EEA nationals who live outside the UK but have commuted to the UK for work but, again, they have to have done that by the end of December 2020 to qualify and there are other quite strict requirements to ensure that they do qualify and continue retain that status to apply for a frontier worker permit. That is a slightly more complex application than the EU Settlement Scheme but if they get that it can allow them to renew that permit indefinitely and entitle them to come into the UK and carry out work without requiring a specific work visa to do that. So, it's a really good option for those that are eligible but they need to have those in place if they want to enter as a frontier worker from 1 July this year onwards. So, again, there's a bit of time pressure for people who are regularly working on that basis to secure that, but the majority of your new recruits coming to the UK for the first time and will need to be sponsored under the Points-Based System for a work visa.”

Joe Glavina: “Final question, Jo. What should employers be doing now?”

Jo Hennessy: “I think the first key thing for employers to do is really up the communications to their staff. Most people are pretty aware of the EU Settlement Scheme and there has been quite a lot of government communications around this as well, but there may be some people who have just kind of forgotten about it through the passage of time. It is really important to get the message out there that those that are eligible need to apply. Even people who have got permanent residence in the UK still need to apply onto the EU Settlement Scheme so make sure that they're aware of that deadline and that they're getting those applications in good time. I think as well, it's good for employers to do a bit of planning. So, identify, if you can, the workers that you think might be affected by this and may be eligible to apply under the EU Settlement Scheme so you can target your comms if needs be as well. Also, just think about your future contingency plans, if needed, if people don't apply. So, is your business going to be particularly hit by people who may lose the right to live and work in the UK? Also, be thinking about your kind of general mobility within your business. So if you have overseas European staff who regularly come into the UK it is worth thinking, is that activity something that may qualify for a frontier worker permit? Can they do that as a business visitor, for example, or do we need something more substantial and have visas in place for these people? There are similar considerations for UK staff who would be travelling to Europe for work or for business visits so it's worth having a think about that as well. A lot of employers are asking their staff to voluntarily provide information about whether they have applied to the EU Settlement Scheme, or if they've had an outcome. You can't insist that people apply and you can't insist that they provide that information but there is merit in asking them to voluntarily provide it just so you have a better oversight of what's going on among the workforce and the potential impact on the business. We are also waiting on potential developments in the right to work checks that employers have to carry out. We are expecting that, hopefully, in the coming weeks from the Home Office, but at the moment employers aren't required to do anything different in terms of right to work checks with European nationals to what they've previously done, so they can still accept, for example, a European passport and they don't have to question when that individual will come into the UK and therefore what their status is whether they fall under the Withdrawal Agreement or otherwise. That is making quite a tricky position for employers and we expect that to potentially change, and so the more data that employers have about affected staff, the better that they will be able to apply any potential changes to right to work checks against existing staff that might be brought in if they have that information readily to hand.”

Jo has written about this in some detail in her article ‘Actions for employers as EU Settlement Scheme deadline looms’. You can find that, along with all the other immigration developments on the Outlaw website.