European Economic Area (EEA) and Swiss nationals who were resident in the UK on or before 11pm on 31 December 2020 have until 30 June 2021 to submit their applications for status under the EU Settlement Scheme (‘EUSS’).
Key considerations for employers
Support to staff
Employers may wish to out communications to all staff reminding them about the deadline and signposting them to the Home Office’s website.
Right to work checks
If an organisation hires an EEA or Swiss national between now and 30 June 2021 (inclusive), they can conduct right to work checks on the basis of the individual’s passport or national ID card as proof of their right to work in the UK. The Home Office has confirmed that there will be no mandatory requirement to conduct a retrospective check on an EEA or Swiss national who was employed on or before 30 June 2021.
Provided employers conduct the initial right to work checks correctly, in the event that the EEA or Swiss national does not apply under the EUSS before the deadline and doesn’t have any other appropriate immigration status to work, the employer will have a defence to liability under the illegal working provisions.
If employers are concerned about the stability of their workforce, they may (1) invite staff to confirm their status under the EUSS or other appropriate immigration status and (2) conduct retrospective checks. It goes without saying that this must be dealt with sensitively and in a non-discriminatory manner.
The right to work check process will change from 1 July 2021, when EEA or Swiss nationals will be required to evidence their right to work by way of their immigration status, rather than simply relying on their nationality. We are currently waiting for updated guidance from the Home Office so watch this space.
Key considerations for EEA / Swiss nationals
Initial applications under the EU Settlement Scheme must be submitted by 30 June 2021 in order for the EEA or Swiss national to continue living lawfully in the UK after that date. This includes applications by EEA or Swiss nationals already with documents certifying permanent residence, who will need to re-apply for new documentation.
Any EEA or Swiss national who make an application by the 30 June 2021 will continue to have to right to live and work in the UK whilst their application is being processed.
British and Irish nationals will not need to do anything.
The application is online and free. EEA or Swiss nationals who have been lawfully in the UK for five years will be able to apply for “settled status” with automatic checks being run in the basis of their National Insurance Number. If the check comes back as inconclusive, the applicant is able to upload further evidence of their residence in the UK.
EEA or Swiss nationals lawfully in the UK for less than five years will be granted a time limited “pre-settled status” to allow them to remain in the UK for a further five years in order to obtain settled status. Subsequent applications for settled status can be made after the 30 June deadline.
Family members of EEA nationals will be able to apply for an EU Family Permit to join their family member in the UK under the EU Settlement Scheme provided the relationship existed on 31 December 2020 and it continues to exist when the family members come to the UK. The requirements are slightly different for family members of Swiss nationals.
From 1 July 2021, all EEA or Swiss nationals will need to have valid UK immigration permission to live and work in the UK. It is therefore vital that those who have not already applied under the EU Settlement Scheme do so before 30 June 2021. Failure to do so could see them losing their jobs and being prevented from re-entry to the UK without additional sponsorship under the sponsor licence regime.
It is in both employee’s and employer’s interests that the applications are made in time.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of June 1, 2021.