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Brexit: How will the EU Settlement Scheme affect employers?

Hannah Thomas, Markel Law’s employment law solicitor, summarises the EU settlement immigration scheme in place for European Economic Area (EEA) nationals, Swiss nationals and their family members who wish to continue living in the UK after 30 June 2021 and what it means for employers.

Author: Hannah Thomas, Employment Law Solicitor

Who can apply and when?

The EU Settlement Scheme opened to all applicants on 30 March 2019 and is available to EU, EEA and Swiss citizens and their eligible family members who wish to stay in the UK after 30 June 2021. The EEA includes the EU countries and also Iceland, Liechtenstein and Norway.

EEA nationals and Swiss nationals who have lived in the UK for five years or who are applying for “pre-settled” status will need to:

  • prove their identity
  • show that they have a UK address
  • declare they have no serious criminal convictions

This will enable them to gain the new immigration “settled status” or “pre-settled” status. Obtaining “settled status” is the immigration equivalent of having indefinite leave to remain in the UK.

Those who have not yet been resident in the UK for five years are eligible to apply for “pre-settled status”, which they can then change to “settled status” free of charge once they’ve completed five years’ continuous residence. The deadline for applying for settled or pre-settled is 30 June 2021.

Under the scheme, applicants will need to prove they have resided in the UK for a minimum period of five years, rather than needing to also evidence they have exercised “free movement” rights (such as demonstrating employment, self-employment or that they are actively seeking work). The test will be restricted to proving residence only. Those who already have permanent residence documentation or indefinite leave to remain do not need to apply, although they can do on a voluntary basis.

Once applicants have achieved “settled status”, they can continue to live and work in the UK without any immigration restriction.

It is free to apply for the scheme.

Further details of the scheme is on the Government website.

The Government has also published an employer toolkit to help guide employers through the new EU settlement scheme. The toolkit includes a briefing pack for communicating key facts to employees, a leaflet with information for EU citizens in the UK, a leaflet with steps to apply for settled status and steps to apply.

Irish citizens

Irish citizens do not need to apply to the Scheme - Irish citizens will be able to continue coming to the UK to live and work as they can now.

What do employers need to do?

The current right to work checks (e.g. EU passport and/or EU national ID card) continue to apply until 30 June 2021. There is no legal requirement for employers to carry out further Right to Work checks for employees who are EEA or Swiss nationals prior to that date.

For EEA and Swiss nationals that were recruited prior to 30 June 2021, there is no requirement to carry out any further right to work checks and employers may continue to rely on the existing right to work checks (such as an EU passport or identify card) as evidence of their right to work in the UK for the duration of their employment, or, in the alternative, on confirmation of the employee’s settled or pre-settled status under the EU settlement scheme.

For any recruitment from 1 July 2021, employers will be under an obligation to check that all EEA nationals and Swiss nationals, have a valid UK immigration status under the new immigration regime - a valid passport or national identity card will no longer be sufficient evidence to provide a statutory excuse.

Employers will not be required to distinguish between EU citizens who moved to the UK before or after the new, points-based immigration system that will be introduced in January 2021.

EEA citizens (which includes EU citizens), Swiss citizens and their family members will need to be living in the UK by 31 December 2020, in order to apply for settled or pre-settled status under the EU Settlement Scheme.

Whilst there is no legal requirement to do so, employers may wish to remind staff to apply for the scheme far in advance of the deadline for applications of 30 June 2021.

For further advice about how business can prepare for Brexit, please contact Hannah Thomas or call us on 0371 705 4006.