Deadline for applications to the EU Settlement Scheme fast approaching

As a former member of the European Union, citizens from other member countries were free to live, work and study in the UK without any formal permission or additional documentation.

This came to an end when the UK left the EU on 31 December 2020. However, the government has made provisions for those already living in the UK so that they can continue their lives with minimal disruption: The EU Settlement scheme (EUSS).

EEA nationals who entered the UK prior to 11pm on 31 December 2020 may remain in the country so long as they apply for settled or pre-settled status before the upcoming 30 June 2021 deadline.

The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what constitutes reasonable grounds has now been provided by the Home Office.

What are the acceptable reasons for applying late?

The guidance gives examples of situations that will “normally” be accepted as reasonable grounds for applying late. However, every case will be considered within its context.

• If a parent, guardian or authority has failed to apply for a child
• Where a person lacks the physical or mental capacity to apply, or has care or support needs
• Where a person has “a serious medical condition (or was undergoing significant medical treatment) in the months before, or around the time of, the deadline applicable to them”
• Where someone was prevented from applying because they are a victim of slavery, including human trafficking
  • If the person has a positive reasonable or conclusive grounds decision under the National Referral Mechanism, no further evidence will be required. Otherwise, the application will need to be internally referred to the Home Office safeguarding team for advice on referral to the National Referral Mechanism
• Where someone was prevented from applying because “they are or were a victim of domestic violence or abuse (or the family member of such a victim) or are or were otherwise in a controlling relationship or situation which prevented them from applying”
• There is also an allowance for other circumstances that can be considered for “compelling, practical or compassionate” reasons. For example, a person may have been unaware of the requirement to apply because they had no internet access, limited computer literacy, limited English language skills, lack of permanent accommodation, other complex needs, or was released from prison or immigration detention after the deadline. This also includes those who did not apply in time because they did not have the required evidence (e.g. they could not get a valid ID document in time and did not know they can use an expired document). The person will need to provide supporting evidence, which can include a letter or statement from a relative, carer or care home, explaining the barriers that prevented an earlier application.

How does this affect UK businesses?

Non-UK citizens arriving in the UK for work require a visa and this now includes those from the EU, EEA or Switzerland.

To obtain a Skilled Worker visa, the individual must show that they have a job offer from an approved UK sponsor, in the form of a Certificate of Sponsorship. Therefore, if your business has traditionally recruited workers from within the EU, you should apply for a Sponsor Licence issued by UK Visas & Immigration to ensure business as usual continuity.

Secondly, in order to remain working in the UK, your existing employees who are EU, EEA or Swiss citizens – and who were already in the UK as of the end of December 2020 – will need to make an application under the EU Settlement Scheme if they haven’t already done so.

See also: Employing EU workers, now what?

The onus is on the business to check that an individual has the right to work in the UK and it is an offence to knowingly employ anyone who does not have that right, including those who accidentally miss the EUSS deadline. Failure to conduct a compliant Right to Work check could result in the business being fined a civil penalty of up to £20,000 per such employee.

However, employers may not insist on seeing evidence that individuals have completed their Settlement Scheme applications until the deadline. Right to Work legislation will be updated to take effect from 1 July 2021. We therefore urge employers to engage with and encourage employees to complete their applications in time.

Checking an individual’s right to work

For EEA individuals who arrived in the UK after 31 December 2020 and other foreign workers, employers are expected to conduct right to work checks, even during the pandemic.

Until 16 May 2021 special Covid-19 measures are in place. If you are carrying out this temporary adjusted check, you must:

• Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
• Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to Covid-19”
• If the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details

From 17 May 2021 you must either:

• Check the applicant’s original documents, or
• Check the applicant’s right to work via the right to work checking service, if they’ve provided a share code and hold a current Biometric Residence document, or status granted under the EUSS

Retrospective checks

You do not need to carry out retrospective checks on those who had a Covid-19 adjusted check between 30 March 2020 and 16 May 2021 (inclusive). This range reflects the length of time the adjusted checks have been in place and supports business during this difficult time.

Any individual identified who is disqualified from working by reason of their immigration status, may be liable for enforcement action. If the job applicant or existing worker cannot show their documents, you must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a “Positive Verification Notice”. This provides you with a statutory excuse for six months from the date in the notice.

Time is of the essence

It should be noted that EU, EEA and Swiss citizens residing in the UK prior to the end of the transition period, who have not yet applied for status under the EUSS, should make every effort to do so before the 30 June deadline. This updated information does not represent an extension of the deadline, or even a relaxation of the rules, but merely an acceptance by the Home Office that there may be those who may be unable to apply under the scheme in time.

We strongly recommend all who are eligible to apply at the earliest opportunity.

Our immigration team is always happy to help. Get in touch with us if you have any questions about the EU Settlement Scheme by emailing immigration@sableinternational.com or calling +44 (0) 20 7759 4500.

If your business employs foreign nationals, we can help you navigate all aspects of these upcoming changes and assist your immigration programme management. Contact us at +44 (0) 20 7759 5307 or workpermits@sableinternational.com.