Last updated: 14/07/2021
The EU settlement scheme ended on the 30th June 2021.
Free movement ended for EEA and Swiss nationals on 31st December 2020 (the end of the Brexit transition period). EEA citizens who entered the UK by this date were given a 6 month ‘grace period’, which has now ended.
The end of this grace period is only around the corner, and many UK employers are wondering what they can do to ensure their EEA workers have the legal right to work in the UK beyond this date.
We investigated the common concerns our clients had and put together some practical tips to protect them against the risks related to employing illegal workers.
What is EU Settlement Scheme (EUSS)?
The EU settlement scheme (EUSS) provides a basis for resident EEA and Swiss citizens and their family members to apply for the UK immigration status; which they will require to remain in the UK. There are two schemes under the EUSS: The Pre-Settled Scheme and The Settled Scheme:
- The Pre-Settled Scheme (or Limited Leave to Remain) grants you the right to work in the UK. It does not give access to welfare benefits by itself, as you will still need to show a “right to reside”.
- The Settled Scheme (or Indefinite Leave to Remain), grants you the right to work, live, access healthcare and welfare.
Both schemes are available to EU, EEA, Swiss citizens, and their family members who have started living in the UK by 31st December 2020 (and without a serious criminal record). From 1st January 2021, workers will be required to obtain an appropriate visa.
Once a settled or pre-settled status is obtained, then there is no requirement to be employed by a sponsored licence holder. In addition, there are no restrictions on the type of employment an EEA citizen can undertake in the UK (once status is obtained).
Misconception: Status under the EU Settlement Scheme (EUSS) is an automatic right
Status under the EUSS does not provide an automatic right to reside in the UK. An application must be completed to secure status.
Employers: you must be aware that if your EU, EEA, and/or Swiss staff do not make an application by the 30th June deadline, then they will be living in the UK unlawfully; and, as a result, their right to work will be lost.
Checking a new recruit’s eligibility to work beyond 30th June
The guidance provided by The Home Office states employers are not expected to distinguish between EEA national who arrived in the UK before or after 31st December 2020.
This makes it difficult for employers to determine if EEA workers will have the legal right to work after 30th June.
In addition, employers that demand EEA workers provide evidence may be accused of discrimination.
The best approach is to have conversations with these workers, and politely ask them to volunteer information regarding their status. And, if these workers need assistance in applying for EUSS status, then employers should do so where possible.
What if my EEA workers do not make an application in time?
The Home Office Guidance states that if employers have undertaken legally compliant right to work checks of EEA passports or ID cards before employing EEA nationals, then they will continue to retain the statutory excuse against the civil offence of employing illegal workers.
Unless employers or the business have knowledge (or grounds to believe) an individual has not made an application in time, then there is little risk of employing an EEA national who has not made an application before the deadline.
To benefit from statutory excuse, the right to work check must have been conducted before employment of the EEA national started.
It should be noted that employers who are employing EEA workers who have not made an application can risk civil penalties, and fines of up to £20,000 per illegal worker. In addition, employers found in breach of this can potentially risk being able to apply for sponsor licence.
What if my EEA workers haven’t heard back from their application?
The minister for future borders and immigration, Kevin Foster, said “Someone who has applied to the EU settlement scheme by the 30 June deadline but has not had a decision by then will have their rights protected until their application is decided…”.
This quote comes from The Guardian. Foster also stated The Home Office are doing everything they can to help those who are vulnerable to apply.
Protecting your business
The Home Office guidance states that employers may choose to undertake retrospective checks of existing workers. However, it is strongly advised to prevent any type of discrimination during this process.
To prevent discrimination, it is advised to ask all staff to bring in updated evidence of their right to work, regardless of their nationality.
If an employer dismisses an EEA worker, based on them not providing their status (whether they are unwilling or unable), then the worker has grounds to file a legal complaint (namely, unfair dismissal). As a result, all employers must treat this approach with the utmost caution.
What if an individual applies for the EU Settlement Scheme after the 30th June?
There has to be ‘reasonable grounds’ if an application is submitted after the 30th June deadline. This may include the worker lacking the digital skills to make an application, or where a parent has failed to make an application on their child’s behalf.
There is a lot of uncertainty around when late applications will be processed. As a result, employers should not use ‘reasonable grounds’ as a fail-safe of any kind.
Ensuring EEA/Swiss recruits have the right to work after 1st July 2021
From 1st July 2021, EEA citizens and their family members will no longer be able to rely solely on their EEA passport or national ID card and will need an immigration status in the UK.
The main code of practice has changed, which affect EEA/Swiss national and any third country family members.
EEA/Swiss nationals with a digital status under the EUSS will have to provide evidence of this to their employer through the online checking service. Repeat right to work checks during their employment will depend on whether they have pre-settled or settled status. Those with biometric documents and frontier worker permits may choose to use the online service. For those with a physical document, manual checks can still be used.
The following amendment has been made to the code of practice regarding acceptable documents as evidence of right to work in the UK:
- Documents issued to EEA/Swiss nationals and their family members by the Bailiwick of Jersey or Guernsey
- Frontier worker permits (evidencing temporary right to work in the UK)
- Irish passports
In terms of the ‘List A’ and ‘List B’ structure, this remains the same, with some alterations to these lists.
‘List A’ documents will secure an ongoing statutory excuse, provided they are checked and recovered correctly.
‘List B’ documents evidence a temporary right to work. So, employers must date checks to complete the required repeat check.
Another change looks at the employer checking service (ECS), which is used to verify an individual’s right to work, if they are unable to provide evidence. If an ECS is not considered within 5 days, they employer will receive and automated response confirming they may hire the individual; thus, providing a statutory excuse to illegal working. If a negative verification notice is received, the employer (with due diligence and care) must investigate before terminating employment. Employers must make the nature of these communications clear to their employee/s, particularly if a negative verification is received (as it will impact their future employment).
Group companies in the EEA
EEA nationals and their family members, who currently reside outside of the UK, may be eligible for settled status, if they completed a continuous qualifying period of 5 years’ residence in the UK prior to the 30th December 2020. Additionally, they must not have been absent from the UK for more than 5 consecutive days.
It is integral that HR teams are aware of this, as individuals engaged in group companies in the EEA can benefit from this, which opens the option to work in the UK without visit visas or sponsorship restrictions.
EBC Global and Right to Work Checks
As usual, it is vital that employers follow the 3-step process to ensure they are checking the right documents, and filing everything correctly:
Obtain original versions of one or more acceptable documents
Check the document’s validity in the presence of the holder*
Make and retain a clear copy, and record the date the check was made
*amid the COVID-19 pandemic, the government have issued temporary adjustments to right to work checks. These are due to change again on the 21st June.
Filing, dating, and keeping records of right to work checks can be an arduous task.
There is also the challenge of performing these checks alongside other vital checks; including DBS checks, credit checks, sanctions, etc.
There is software available that can save time, money, and other resources. Employment Check Pro, contains 100s of functions which has helped our clients manage their employment background checks.
Pro is designed to help companies with specific compliance or referencing background check requirements. Not only is it secure, but it is also fast and fully GDPR-compliant.
For updates, news, and important information regarding all types of employment background checks, be sure to bookmark our blog.