How sure are you that someone has status under the EU Settlement Scheme?

In correspondence with the Immigration Lawyers Practitioners’ Association, the Home Office has provided some helpful clarifications for employers regarding the EU Settlement Scheme (‘EUSS’) and right to work checks.

Settled workers

The big news is that after the end of the transition period, individuals with pre-settled status will be considered settled workers under the Immigration Rules. Settled workers include nationals of the UK, Commonwealth citizens with leave under the UK Ancestry provisions of the rules, those considered settled under the Immigration Act 1971 (as amended), and subject to some minor exceptions, those with rights of residence under EEA regulations, and British overseas territories citizens. We already know that those with settled status under the EUSS will be considered settled workers.

This will be a welcome development to:

• Tier 1 (Entrepreneur) migrants as they will continue to be able to rely on individuals with pre-settled status to meet job creation requirements.
• Individuals with pre-settled status as they retain an advantage in the job market over those not considered ‘settled workers’, for instance when roles need to be advertised in accordance with the resident labour market test.
• Employers who hold sponsor licences will need to ensure that individuals with pre-settled status are considered as settled workers when conducting recruitment campaigns.

In the same correspondence, the Home Office has also confirmed that all EU citizens, regardless of whether they have settled status, pre-settled status, or no status under the EUSS, and who are working in the UK, remain ‘settled workers’ for the purposes of the Immigration Rules until the end of transition period (i.e. until 11pm on 31 December 2020). This is subject to them being considered to have a right of residence under EEA regulations, which in practice will apply to the vast majority of EU nationals working in the UK. Although this may not come as a surprise, the confirmation is nevertheless welcome.

Checking status under the EUSS

With the current UK immigration system in a state of lockdown and many employers thinking about current and future staffing needs, some employers may think they need to check if their affected workforce has received status under the EUSS.

The Home Office has also clarified its choice of language in relation to the ‘checking’ of status under the EUSS. Currently, the introduction to the EUSS for employers on the gov.uk website states that employers ‘should not check whether an employee has applied under the EUSS’. In its correspondence with ILPA, the Home Office has confirmed that the use of the term ‘check’ is intended to make clear that there should be no expectation on the part of the employer that the employee has already applied to the scheme. The deadline for applications is 30 June 2021 (for EU nationals and their family members who are resident in the UK by 31 December 2020). Individuals are free to make an application up until that point.

It’s important that employers do not discriminate against EU nationals (or family members of EU nationals), and in particular against those who do not yet have status under the EUSS or those who have not yet applied under the scheme.

Employers are, however, free to ask or enquire as to whether employees have applied, so long as this is not for a discriminatory reason and does not lead to discrimination. Employers should therefore be cautious and ensure that in asking employees about whether they have applied to the scheme, they do not suggest there is an expectation to do so, and do not treat individuals differently based on whether they have or have not applied.

The government has previously stated that there will be no change to right to work checks until 1 January 2021 and employers will not need to carry out retrospective right to work checks on existing EU employees. Checks already correctly carried out, or that are correctly carried out before the end of the transition period, will therefore continue to provide a statutory excuse against a civil penalty imposed for employing someone who does not have the right to work. The government has suggested that passports and national ID cards of EU citizens will continue to be acceptable evidence of the right to work up until 30 June 2021, but there may be new guidance on right to work checks during this period.

Although many unknowns remain in relation to Brexit, in light of the current immigration climate, no doubt these latest clarifications will provide some comfort to employers and individuals who have been affected.