The EU - Settlement Scheme Deadline Is Fast Approaching

Prior to Brexit, nationals from the EU, the European Economic Area and Switzerland did not require permission to work in the UK. As a result of Brexit however, nationals from these countries must apply under the EU Settlement Scheme to allow them to remain in the UK, and employers are under a legal obligation to verify their right to work.

The deadline for applications to the EU Settlement Scheme (the “Scheme”) is less than three weeks away on 30 June 2021. Barring any last-minute extensions, thousands of EU citizens will lose the right to work and live in the UK if they have not submitted their applications in time. Employers should be reminding nationals from these countries of the need to apply under the Scheme and the deadline for doing so.

What Are The Legal Obligations For Employers In Relation To Right To Work?

Employers have a legal duty to prevent illegal working. Employers found employing someone illegally, having failed to carry out the prescribed checks face a range of sanctions. The sanctions include:

• A fine of up to £20,000 per illegal worker;
• Criminal charges, with conviction of the same carrying a sentence up to 5 years and unlimited fines;
• Closure of the business;
• Disqualification of directors; and
• Review and revocation of other licenses such as migrant sponsorship licence and alcohol licences.

How Does An Employer Verify The Immigration Status Of Nationals From The EU, EEA Or Switzerland?

Employers have been able to satisfy their right to check obligations in relation to nationals from these countries until now by requesting and reviewing a copy of a valid passport or national identity card. From 30 June 2021, this will change. Employees will be able to obtain a unique code from the Home Office online service, which they can share with their employer to prove their immigration status.

What About Pending Applications?

An estimated 300,000 applications to the Scheme remain pending and thousands more eligible individuals have yet to apply. The government has confirmed that the rights of those who have applied, but not received a decision before 30 June 2021, will be protected. What their exact status will be and how this will impact on an employer’s obligation to check and confirm the right of those they employee to work in the UK is less certain.

Next Steps

Employers should undertake a general audit of their right to work records to ensure the appropriate evidence of employees’ right to work is retained on file post 30 June 2021 and reminding those who haven’t applied of the deadline for doing so.

Employers should request up to date proof from employees of their immigration status, including nationals from the EU, EEA and Switzerland that had previously used their passport or national identity card as proof of their right to work in the UK.

Employers should be mindful of the fact that an employee’s immigration status may be linked to their racial and ethnic origin, which is a protected characteristic under the Equality Act 2010, and should ensure that their processes and procedures do no expose them to the risk of discrimination claims.

The Geldards Business Immigration Team are available if you require any advice in relation to this or any other business immigration matter.