This article explores the position with EU citizens (which is the label used within it to refer to EU/EEA/Swiss citizens) who are already in the UK, who arrived prior to 31st December 2020 and who arrive in the UK from 1st January 2021.
How will Brexit impact employment?
The main impact of Brexit in employment law terms will be seen in the recruitment process as immigration laws change. Employers are under an obligation to take steps to ensure a worker’s right to work in the UK and this process has been amended in light of the consequences of Brexit.
From 1st January 2021, the transition period, and so free movement, ended. This means that EU/EEA/Swiss citizens arriving in the UK will need to gain permission to work in the UK.
What are the potential consequences for employing foreign nationals unlawfully?
Employers are under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so.
There is a civil penalty in place where the employer can be fined a maximum of £20,000 per worker who does not have permission to carry out the work they are employed to do. Under the civil penalty scheme, an immigration officer who believes the organisation is employing an individual who does not have the correct permission to work can issue a notice imposing the fine.
To gain a ‘statutory excuse’ against the civil penalty, you need carry out right to work checks in accordance with the Home Office’s checking process. You should also only make offers of employment conditional upon successful right to work checks.
A criminal offence will be committed if you employ an individual and you have ‘reasonable cause to believe’ they do not have the right to work in the UK.
Employers can use the Home Office’s online right to work checking service to be granted the statutory excuse. Where the service can be used to check an individual’s immigration status, no further documentary checks will be required.
Does Brexit affect EU citizens already employed in the UK?
Yes. EU citizens who are currently employed in the UK need to take action to gain permission to remain in the UK. This applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Employees must apply to the EU Settlement Scheme. Successful application guarantees the right to continue living and working in the UK indefinitely.
How does the EU Settlement Scheme work?
Applications for the EU Settlement Scheme will close on 30th June 2021. This means that employees have until 30th June 2021 to submit an application. Individuals must be in the UK by 31st December 2020 to apply. Anyone arriving from 1st January 2021 onwards is not eligible to apply.
Successful applicants who have five years’ continuous residence in the UK at the time they make the application will be granted ‘settled status’ meaning they will have indefinite leave to remain in the UK. Five years’ continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for 6 months in any 12-month period for five years in a row, with some exceptions.
Those who were in the UK by 31st December 2020 but do not have five years’ continuous residence by the date they apply will get ‘pre-settled status’, which allows them to stay in the UK until they have reached the five year residence point i.e. it allows them to stay for a maximum of five years and then they can apply for settled status.
How should employees apply to the EU Settlement Scheme?
Applications for the Scheme are made from the gov.uk website. It is free to apply.
Applicants will need to provide a valid passport or valid national identity card, alongside a digital photograph of their face. In the absence of these, alternative evidence may be provided in certain situations. Applicants can:
- scan their document and upload their photo using the ‘EU Exit: ID Document Check’ app using an Android phone, or an iPhone 7 or above
- send their document in the post and upload their photo using the online application.
This evidence will need to be provided again to switch from ‘settled’ to ‘pre-settled’ status.
Individuals can provide their national insurance number for an automated check of their residence based on tax and certain benefit records. If this check is successful, the individual will not need to provide any further documentation. If not, the Home Office will notify them of the further information required instantly.
Are there situations where ‘settled status’ may be refused?
The Government has remained clear that the majority of applications for ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme will be accepted. However, the main reason they may be rejected is if the individual has committed serious or repeated crimes and/or poses a major security risk.
Applicants will be asked to declare any criminal convictions that appear in their criminal records, either in the UK or overseas. Individuals will also be checked against the UK’s criminal database. If they have been to prison, they will usually need to have five years’ continuous residence from the date of their release.
Individuals will not be asked to disclose spent convictions, cautions or alternatives to prosecution, such as speeding fines.
What will a successful applicant receive?
Successful applicants will be sent an email confirming their status and the date it was granted with a unique reference number rather than a physical document. It usually takes around 5 working days for complete applications to be processed if no further information is required, but it can take up to a month.
Successful applicants can obtain a ‘share code’ to prove their immigration status to employers through the government website. Share codes can be used for prospective employers to check online if a job applicant has the right to work in the UK.
How can I make sure my EU citizen employees apply to the scheme?
Employers will no doubt be keen to make sure their employees secure permission to remain in the UK. However, it is ultimately the employee’s choice whether they stay or not.
Forcing employees to apply may constitute unlawful discrimination. Whilst it is not a legal obligation for you to inform employees about the Scheme, you may choose to encourage your employees to apply by, for example:
- providing information about the EU Settlement Scheme, what is involved and the timeframes in place
- allowing work IT equipment to be used to make the application
- offering assistance when making the application to employees who are not proficient in the English language or are not confident in using IT equipment.
It will be helpful to carry out an audit of your workforce to understand which of your employees may need to apply.
Should I check that my EU citizen employees have applied to the Settlement Scheme?
Government guidance on the Scheme states that it is the responsibility of the individual to make an application. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied. This does not mean that you cannot ask the employee whether they have applied. The specific wording used by the Government – that employers should not ‘check’ – is to prevent any form of discrimination against employees who are eligible but have not yet applied.
The implications for an employee who needs to apply, but does not, are not yet clear and it is hoped that the Government will provide clarity in the not too distant future.
When recruiting, can I ask job applicants to provide evidence that they have obtained status under the EU Settlement Scheme?
You must continue to check the right to work of all job applicants. Government guidance states that you will continue to check a job applicant’s right to work in the UK under existing rules until 30th June 2021 i.e. there is no change to right to work checks until then. Currently, job applicants can prove the right to work with any of the following:
- their valid passport or national identity card if they’re an EU, EEA or Swiss citizen
- their valid biometric residence card if they’re a non-EU, EEA or Swiss citizen family member
- their status under the EU Settlement Scheme using the Home Office’s online right to work checking service.
Whilst job applicants can use their status under the EU Settlement Scheme as evidence, you cannot require them to produce this. If they do so, you can use the share code to check status online. If an EU citizen produces their valid passport, then this is sufficient evidence of their right to work. There is no obligation to provide their status under the Settlement Scheme. Requiring this is likely to constitute discrimination. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application.
How will I know whether an EU national arrived in the UK before or after 1st January 2021?
The reality is that you will not know this, nor are you required to find out due to guidance stating that right to work checks will not change until after 30th June 2021. The Government has not yet addressed the consequent predicament that employers are left in.
What are the rules on recruiting EU nationals under new immigration rules from 1st January 2021?
From 1st January 2021, a new points-based immigration system will come into operation which will apply to all non-British and non-Irish citizens. Under this system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points.
There will be various routes available for entry to the UK to work, including:
- Skilled worker
- Intra-company transfer
- Health and care visa
- Start up and innovator
- Global talent visa
A highly skilled worker route is likely to be implemented in 2022.
How will the health and care visa work?
A Health and Care Worker visa is part of the skilled worker route. It allows medical professionals to come to or stay in the UK to do an eligible job with the NHS, an NHS supplier or in adult social care.
To qualify for a Health and Care Worker visa, individuals must:
- be a qualified doctor, nurse, health professional or adult social care professional
- work in an eligible health or social care job
- work for a UK employer that’s been approved by the Home Office
- have a ‘certificate of sponsorship’ from their employer with information about the role they’ve been offered in the UK
- be paid a minimum salary – how much depends on the type of work they do.
Do I need to apply for a sponsorship license?
From 1st January 2021, you must have a sponsorship license to employ a foreign national through some, though not all, of the immigration routes. The skilled worker route requires sponsorship. Sponsorship licences are not needed to employ an individual who has status under the EU Settlement Scheme.
Employers can sponsor an employee only if the role meets the minimum requirements. An employer who is sponsor can issue sponsorship certificates to foreign nationals who will then use it as part of their visa application.
Information on applying for a sponsorship license and the process is available here.
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