The EU Settlement Scheme (‘EUSS’) officially closed for applications on 30 June 2021. From 1 July 2021, all EU, EEA and Swiss nationals will need to have immigration status in the UK to live and work.
What is expected from employers now that the deadline has passed?
The EU Settlement Scheme (‘EUSS’) officially closed for applications on 30 June 2021. From 1 July 2021, all EU, EEA and Swiss nationals will need to have immigration status in the UK to live and work. But what does this mean for UK employers?
From 30 June 2021, UK employers will need to confirm that EU, EEA and Swiss nationals have the right to work in the UK before employing them. Employers will no longer be able to rely on an EU passport or identity card as proof of the right to work in the UK. Instead, they will need to use the Home Office’s online service to request the individual’s digital EUSS status.
Employing individuals who do not have the right to work in the UK could mean that the employer is facilitating illegal working. However, the Home Office has confirmed that employers are not expected to carry out retrospective right to work checks on staff employed before 30 June 2021 who are EU, EEA and Swiss nationals. They have also put in place a concession in respect of employees who may still be eligible to apply under the EUSS, even though the deadline has passed.
Under the concession, if you are aware of have reasonable cause to suspect that an EU, EEA or Swiss national employed before 1 July 2021 has not made an application, you should give them 28 days to do so rather than ending their employment altogether. After 28 have passed, you will need to follow up with the individual to see if they have made an application and ask to see their Certificate of Application, which they should have been issued with as proof of their right to work while their application is pending. If the employee does not make their application within the timeframe, you must take steps to cease their employment in line with the law and your procedures. This ‘grace period’ concession will end on 31 December 2021.
The Home Office has confirmed that employers will not be prosecuted for employing EU, EEA and Swiss nationals over the “grace period” if they did so in good faith and carried out full right to work checks at the appropriate time. Additionally, individuals who are awaiting a decision on their application will continue to have the right to live and work in the UK until their application is decided.
There have been reports of employers dismissing employees who are eligible to make a late application or who have a pending application. Whilst it is understandable that employers may wish to take a cautious approach to illegal working, they should also be mindful of taking unlawful disciplinary action against employees or dismissing them unfairly while the grace period is in place.
Employers should be careful not to automatically dismiss an employee if they cannot show they have the right to work. Dismissal without due process can lead to an unfair dismissal claim, and treating EU, EEA or Swiss nationals differently to other employees can also give rise to a discrimination claim. Although illegality is a potentially fair reason for dismissal, an employer may not be able to rely on this if it turned out the employee did have the right to work in the UK (because they had a pending application, for example), or if their status could be rectified following the Home Office’s current concession.
We would advise that employers identify staff whose right to work may be affected by these changes, if they have not already done so, and put in place a process through which they can carry out appropriate right to work checks in line with the Home Office’s guidance and employment law.
What can you do as an individual if you’ve missed the deadline?
Can I still make an application if I missed the deadline?
Anyone eligible under the EUSS – i.e. an EU, EEA or Swiss national or their family member, resident in the UK before 11pm 30 December 2021 – can make a late application where there are ‘reasonable grounds’ for failing to meet the deadline. This should be done online or using the EUSS paper application form, with reasons for applying late set out in full.
While an exhaustive list of such ‘reasonable grounds’ has not been set out by the Home Office, examples include:
- where you have a serious medical condition or underwent significant medical treatment in the months before, or around the time of, the deadline;
- where you were in an abusive or controlling relationship or situation;
- other compelling practical or compassionate reasons, such as having no internet access, limited computer literacy, limited English language skills, being unable to access support due to Covid-19 restrictions, and having lived in the UK for so long that you did not realise that you needed to apply.
You may still apply if you don’t fall into any of these specific categories. It is important to remember that your application will be considered in light of your particular circumstances. You should set out your reasons in detail and provide supporting evidence to ensure your best chances of a successful application.
The Home Office has also announced that it will protect the rights of late applicants while their application is being decided. This means that if you submitted an application after 1 July 2021, you can take on new employment, rent property, and access benefits and NHS services while your application is being considered. However, you must put in an application and explain your reasonable grounds fully to be covered.
Will I be subject to immigration enforcement action if I have not made an application before the deadline?
In the instance that you are eligible but did not apply for the EUSS and an Immigration Enforcement officer becomes aware of this, you will be issued with a written notice to make an application within 28 days. You must ensure that you make an application within this window, again explaining fully your ‘reasonable’ excuse for not applying before the 30 June deadline. No immigration enforcement action will be taken against you during these 28 days.
What if I applied before the 30 June deadline but haven’t heard about the outcome of my application?
The Government announced on 2 July 2021 that there are an estimated 570,000 pending EUSS applications, so you won’t be alone.
You should have been issued with a Certificate of Application (‘CoA’) upon submitting your application. Until you are told the outcome of your application, you can rely on this as proof of your lawful status. The Home Office has now made the CoA digital so that you can prove your immigration status online.
If you haven’t received your CoA, you should check your application acknowledgement email or letter – this will explain how to evidence that you submitted your application before the deadline.
There have been reports of employers dismissing employees where they consider that the employee does not have sufficient evidence to prove their right to work in UK post 30 June 2021, even where the individual has a pending application with the Home Office. There are protections in place for individuals who have a pending application and for those with reasonable grounds for missing the deadline. Disciplinary action from an employer in contravention of these protections may give rise to an employment claim. Employers will need to act with care in accordance with relevant immigration and employment law and should avoid knee-jerk reactions.
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 August 9, 2021.