EU citizens and their family members (including children and non-EU citizens), who were residing in the UK by 31 December 2020, had to apply to the EU Settlement Scheme to continue to live, work and study in the UK beyond 30 June 2021. Under the terms of Britain’s departure from the European Union, EU citizens no longer have an automatic right to do so as freedom of movement has come to an end.
As of Thursday 1 July, it is unlawful to employ a European Union national who does not have either pre-settled or settled status. Given the valuable contribution EU citizens make to businesses and organisations across the UK, employers have been working hard to ensure that their employees can continue to live and work in the UK, but a recent report discovered that there are 130,000 of EU nationals who have not yet to apply to have the right to work in the UK / were not aware that they had to do so. More than 5.6 million applications have been received, but around 400,000 cases are still waiting to be processed.
The Home Office are required to accept late applications where there are reasonable grounds for the deadline having been missed – see Late Application guidance. This means, you must explain why you missed the deadline, and the Home Office must accept that explanation as being a reasonable excuse in order for them to accept your late EUSS application. The late application must also have been made as soon as possible after the deadline has passed.
What do employers need to know?
- It is the responsibility of the EU citizen to have made an application to the EU Settlement Scheme.
- You have a duty not to discriminate against EU citizens as both a prospective and current employer. You could not have made an offer of employment, or continued employment, dependent on an individual having made an application to the EUSS until after 30 June 2021.
- As an employer, you have a responsibility to prevent illegal working by ensuring your employees have the right to work here. The ‘Code of practice on preventing illegal working’ can be found here.
- ‘Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working’ provides practical guidance on how to avoid unlawful discrimination when employing individuals and conducting right to work checks. We strongly recommend that you refer to this Code of practice when conducting document checks. If you breach this Code of practice, it may be used as evidence in legal proceedings.
- Close family members who were not living in the UK by 31 December 2020 will be able to join their EU family member in the UK at any point in the future if they meet the requirements such as the relationship still exists and their EU family member was resident in the UK by 31 December 2020.
- From 1 January 2021, the UK introduced a points-based immigration system. You will need to be a licensed sponsor to hire eligible employees from outside the UK. Anyone you want to hire from outside the UK, excluding Irish citizens, will need to apply for immigration permission in advance of their arrival. Further information is available at gov.uk/HiringFromTheEU
Right to work checks
You should conduct right to work checks on all potential employees, including British citizens. Do not simply check the status of those who appear to be migrants, otherwise you could be breaking the law as well as leaving yourself liable to a penalty in the event of illegal working.
The majority of EU citizens will prove their right to work using the Home Office online right to work service. Those who have made a successful application to the EUSS will have been granted their immigration status digitally and can only prove their right to work using the Home Office online service ‘prove your right to work to an employer’ (gov.uk/prove-right-to-work). Read our latest blog here for advice for employers on right to work checks.
Employers should review their workforce as a matter of urgency because the consequences for EU national employees who have not applied for settled status could be subject to immigration enforcement action, even if they have been in the UK for decades or they have previously secured permanent residence status.
If you need advice or support or how to conduct a fair process to end an employment contract legally in this situation, please contact a member of the ViewHR team today.