13 July 2021 #Immigration
In anticipation of 30th June 2021 (the final day for EU nationals who began their residence in the UK before 31st December 2020 to submit applications to the EU Settlement Scheme), the Home Office heavily advertised that applying to the EU Settlement Scheme (EUSS/the Scheme) by this date was compulsory for EU nationals in order to retain their right to live and work in the UK.
It has now come to light in recently updated Home Office guidance that the supposed hard end to the EU Settlement Scheme on 30th June 2021 was in fact not so final, and EU nationals in certain circumstances are still eligible to apply to the Scheme.
Furthermore, what has become lost in translation is that not all EU nationals are required to apply to the EU Settlement Scheme where they hold immigration permission under a different UK immigration category e.g. indefinite leave to enter/remain, family-based leave, etc.
Below are answers to some frequently asked questions we have received from UK clients who employ migrant workers:
Are retrospective right to work checks required for existing EU employees who began working for us prior to 30th June 2021?
No, there is no requirement for retrospective right to work checks to be conducted on EU employees who entered into employment up to and including 30th June 2021. A continuous statutory excuse against a civil penalty will be maintained if the initial right to work checks were undertaken in the legally prescribed manner at that time.
If you do choose to conduct retrospective checks, you must ensure that this is done in a non-discriminatory manner.
If an EU employee has provided evidence (e.g. by using the Home Office online right to work service) of being granted with ‘Pre-Settled Status’ under the EU Settlement Scheme, is this evidence of an indefinite right to work in the UK?
No, EU nationals granted with Pre-Settled Status by the Home Office have a time limit on their right to live and work in the UK, and you must conduct a follow-up right to work check prior to their Pre-Settled Status expiration date. The Home Office online right to work service will confirm when a follow-up check is required.
EU nationals granted with Settled Status under the EU Settlement Scheme hold an indefinite right to work in the UK, and thus a follow-up check is not necessary.
Can we continue to employ an EU national who submitted an EU Settlement Scheme application by the deadline of 30th June 2021, but who has not yet received a decision on their application?
Yes, provided you carry out the right to work checks in the lawfully prescribed manner. EU nationals awaiting decisions on applications submitted to the Scheme by 30th June 2021 are permitted to live and work in the UK until their applications are finally determined.
Those EU employees with an outstanding online application should have been issued with a digital Certificate of Application (CoA).
In the first instance, you should ask the EU national if they can provide you with a ‘share code’ generated by using the online right to work service. This share code will enable you to check their right to work immediately online as opposed to having to use the Employer Checking Service (ECS).
If the EU employee submitted a paper application to the EU Settlement Scheme, you must request and make a copy of the paper CoA or Home Office letter/email notification acknowledging receipt of the application, and request a right to work check from the ECS. The response from the ECS must also be retained.
Can I hire an EU national who has not applied to the EU Settlement Scheme by 30th June 2021?
If an EU national applies for a job on or after 1st July 2021, but has not applied to the EU Settlement Scheme nor do they hold alternative immigration status, they will not be able to pass a right to work check and you should not employ them. You may signpost them to applying to the EU Settlement Scheme if you suspect they are eligible, but you may not employ them without satisfactory evidence of their right to work.
What actions should I take if I were to discover that I am employing EU nationals who did not apply to the EU Settlement Scheme by the deadline of 30th June 2021, and who do not hold a valid alternative immigration permission?
In these circumstances, there is a transitional measure effective until 31st December 2021 which may be used by UK employers for EU employees whose employment began on or before 30th June 2021.
Under this transitional measure, the following steps must be taken:
1. Advise the EU employee that they must apply to the EU Settlement Scheme within 28 days, and must provide evidence of such an application in the form of an EUSS CoA or an EUSS email/letter confirming receipt of their application.
2. If the EU employee does not apply to the Scheme within the mandatory 28 day period, you must take steps to end their employment.
3. Upon receipt of the EU employee’s late application to the Scheme, request a right to work check from the ECS.
4.Before the PVN expires, you must carry out a follow-up check via the ECS:
The immigration rules surrounding the employment of migrant workers is incredibly complex and detailed. There are substantial financial and legal consequences for UK businesses should they be found to employing illegal workers, even if this is done unknowingly.
Please contact Immigration associate Rebecca Hone in our UK Immigration team with any immigration queries you may have.