What Employers Should Know About the EU Settlement Scheme After 30th June 2021

As you will no doubt be aware, applications under the EU Settlement Scheme (EUSS) closed on 30^th June 2021. Remarkably, over six million applications from EU and EEA nationals and their family members were received by the Home Office, a number which is far in excess of the number expected. And of those received, around 5.4 million have been processed. According to the latest data, 2.8 million applicants received full settled status, and 2.3 million received pre-settled status. The six million applications received do not necessarily correspond to six million people, however, as it is known that at least 6% had previously applied. It is important that EU nationals and UK employers understand that while the scheme is closed to new applications, the scheme itself is still receiving applications, including from those with a valid excuse and those who have pre-settled status but need to apply for full settled status. In this article, we will explain what employers in the UK should know about the EU Settlement Scheme after 30^th June 2021.

What Is The EU Settlement Scheme?

The EUSS enabled EU and EEA nationals living in the UK before the end of 2020 to gain the right of residence. The scheme was put in place as a result of the departure of the UK from the EU and the ending of free movement. Applicants received either pre-settled status if they had been living in the UK for less than five years or full settled status if they had been living in the UK for five years or more. Settled status is equivalent to permanent residence, while pre-settled status enables applicants to remain in the UK for a further five years to meet the residence period to gain full settled status.

From the perspective of UK businesses reliant on EU and EEA workers, while there was no requirement to ensure European staff had applied, it has remained the employer’s responsibility that all employees possess the right to work in the UK.

Must EU Employees Have Received Settled Or Pre-Settled Status To Remain Working?

No, what matters is that they were living in the UK before the end of 2020, and they submitted their application to the EUSS before the end of June 2021. The Home Office guidance states, “Employees awaiting the outcome of their application will be provided with a Certificate of Application (CoA). They can use this to prove their right to work. Those who do not yet have a digital CoA can rely on their EU Settlement Scheme email (or letter if they submitted a paper application) confirming receipt of their application as proof of their right to work when this is verified by the Home Office Employer Checking Service.”

Do I Need To Carry Out Another Right To Work Check For EU Employees If One Was Completed Before 30^th June 2021?

No, because you have already undertaken a right-to-work check on your EU employees before the cut-off date for EUSS applications, you will have a ‘continuous statutory excuse’ against a civil penalty. The Home Office states, “You will have a continuous statutory excuse against a civil penalty if you carried out an initial right to work check in the correct way at the time you completed the check, such as where an EU citizen provided their passport or national identity card to you to prove their right to work prior to 30th June”.

Where you do choose to carry out retrospective checks on EU workers within your workforce, you must do so in a way that cannot be construed as discriminatory.

What Should I Do If An EU Staff Member Tells Me They Have Not Applied Under The EUSS?

If you encounter a situation whereby an EU national in your team advises you that they do not have a valid form of leave in the UK and they did not apply to the EUSS, perhaps during a retrospective audit, it is important to take the correct steps. If you have continued to employ an EU worker who no longer has valid leave in the UK and you did so in good faith, you will not face a civil penalty. In this case, if they have reasonable grounds for not applying to the EUSS, then they will still have the chance to apply even after 30^th June 2021. The Home Office advises that businesses in this situation should:

• Advise the individual they must make an application to the EUSS within 28 days
• Request proof of applying to the EUSS
• If they do not apply within 28 days, you must take steps to cease their employment
• If they have applied within 28 days, request a right to work check from the Home Office Employer Checking Service (ECS) - https://www.gov.uk/employee-im...
• the ECS will provide a Positive Verification Notice (PVN). This must be stored with a copy of the individual’s evidence of application to the EUSS, along with the initial right to work check carried out on or before 30th June 2021.
• A further ECS request should be made before the PVN expires and repeated up to six times if the application is still pending.
• If the EU national’s EUSS application is refused, their employment must be ceased.

Carrying Out Right To Work Checks For EEA Citizens From 1st July 2021

As of 1st July 2021, EU and EEA nationals and their family members must have evidence of their immigration status in the UK in the same way as other overseas citizens. As such, a passport or national identity card is no longer acceptable.

In such cases, it is recommended that EU/EEA nationals use the Home Office’s right to work service. Those with settled or pre-settled status will have an eVisa and can only show their right to work using the online checking service; this is available at:

https://www.gov.uk/prove-right-to-work.

Prospective employees will simply need to provide a share code to the employer who can view their right to work at: https://www.gov.uk/view-right-to-work.

In addition to using the right to work online service, EEA/EU nationals can also prove their right to work by providing one of the following:

• Frontier Worker Permit
• A Service Provider of Switzerland visa
• Evidence of an outstanding application to UK EUSS
• Outstanding application to Crown Dependency EUSS
• Evidence of Indefinite Leave to Enter/Remain
• Points-Based System visas, including eVisas

Final Words

The Home Office has provided a great deal of guidance for employers and EU/EEA employees to enable them to navigate the immigration system after 30^th June 2021, when applications to the EUSS closed. If you are unsure of the best course of action, speak to an Immigration Solicitor who will be able to advise you.