Securing settled status — how far does the employer’s duty go?

Introduction

Brexit happened on 31 January 2020 when the UK left the EU into a transitional period. EU nationals currently working and living in the UK must now secure settled or pre-settled status within the transitional period and indeed prior to the deadline, 30 June 2021 if they want to remain in the UK after such time.

The fundamental principle of free movement of workers remains for the next 11 months but after that new immigration rules are likely to be in place to define the terms of entry and residence of EU nationals.

Though the deadline for applying for settled (or pre-settled) status is 30 June 2021, workers who have not commenced living in the UK by 31 December 2020 will not be granted any form of settled status and will instead, be subject to the new immigration rules in place.

Therefore, employers who heavily rely on an EU workforce should, if they haven’t already, consider how this will impact their business now and beyond the June 2021 deadline

What is settled status?

Securing settled or pre-settled status allows your EU national workers to remain working in the UK and have access to the usual services that any British citizen would have (e.g. free access to the NHS, enrol in education, access public funds to benefits and pensions (where eligible)) and travel in and out of the UK.

So long as your workers do not spend over five years outside the UK (or 2 years if they have pre-settled status) they will not lose their settled status.

Why should employers get involved?

There are concerns that some EU nationals do not know they need to apply for settled status, with some believing that as they hold a permanent residence card they need not apply. That is not correct.

If EU nationals fail to secure settled status (or pre-settled status) they run the risk of losing their right to remain in the UK beyond the June 2021 deadline.

So, with approximately 2.24 million EU nationals working in the UK, businesses looking to secure their EU national workforce going forward should consider how they can assist with securing settled (or pre-settled status) for their employees and perhaps, their family members.

Inform your workforce

Though it is the individual’s responsibility to make an application to the EU Settlement Scheme, businesses may prefer to assist as much as possible. The key issue is to ensure that your EU national workers are fully aware of what their rights and responsibilities are to secure the settled status required.

Employers should not interpret the information provided by the UK government and must be careful not to provide immigration advice, but you are free to raise awareness and reiterate what is required when applying to the EU settlement scheme.

Beyond that, employers may also wish to consider assisting with the application process themselves, confirm what that looks like and what document will be required to facilitate the process (e.g. proof of identity, residency and continuous residency documents). This is not required or indeed compulsory, but employers with a substantial EU national workforce may wish to be more proactive in this regard and consider seeking external help from immigration specialists to assist.

Non-EU national workers

Employers should take an active role in encouraging employees to consider their status and that of their family members. Businesses should not underestimate the impact the EU Settlement Scheme process will have on non-EU national family members.

Non-EU national family members may need to apply for settled status and businesses really should evaluate how that may impact their workforce to avoid any surprises nearer the deadline. Non-EU national family members may need to have their original passport or Biometric Residence Permit (BRP) verified as part of any EU settlement scheme application, so such matters should be addressed sooner rather than later.

The government suggests that non-EU national family members are likely to obtain a quicker decision for any settlement scheme application if they apply at the same time as, or after, their EU national family member. This is because the EU national family member will be supplied with an application number, which the non-EU national member can use as a link for their own application.

Be clear on what the transitional period means for your business

As a business, you should ensure that you understand what your duties are during the transitional period. In particular:

• There is no requirement for an employee to inform the employer that they have applied or the outcome of their application. Likewise, employers are not required to check that an employee has applied. There is however nothing preventing employers from raising awareness of the settlement application process.
• Employers have a duty not to discriminate against EU citizens in light of the decision to leave the EU, whether as a prospective or current employer. Businesses cannot make an offer of employment, or continued employment, dependent on an individual having made an application. However, if EU national workers do not obtain the required status to remain in the UK, that will pose a significant problem and barrier for employers wishing to continue with their employment.
• The current right to work checks (e.g. passport and/or national identity card) will continue to apply until the end of 2020 and we encourage businesses to ensure they maintain such checks on a continuing basis.
• EU citizens can evidence their right to work using the online right to work service if they choose to do so. However, they are under no obligation to demonstrate their right to work in this way.
• There will be no change to the rights and status of EU citizens living in the UK until 30 June 2021.
• Employers are not required to undertake retrospective checks on existing EU employees when the UK transitions to the future skills-based immigration system.

What do we think?

Though there is no obligation for employers to assist or even drive the EU settlement scheme application process, it is clear that being informed of what is required and preparing sooner rather than later will assist any transition for both workers and employers.

Some workers may feel daunted about going through the process or worse, may not be aware of what they need to do so raising awareness and providing signpost support will help.

There’s a fine balance to be struck when notifying EU nationals of the requirement to apply for settled status and ensuring you don’t actually give immigration advice. It is therefore recommended that employers seek specialist immigration advice if they are looking to provide any level of support and assistance to its workforce with any application to the EU settlement scheme.

For more information on this update, please contact Ingrid McGhee, Partner on 0141 404 9300 or ingrid.mcghee@weightmans.com.