The end of free movement arrived on the 1st of January 2021 meaning that EU and non-EU citizens are now treated equally. It is imperative that businesses are prepared for the changes to right to work checks that will come into play for EU citizens as of the 30th of June 2021.
June 30th is the deadline for application to the EU Settlement Scheme; a scheme which allows EU, EEA and Swiss citizens (who lived in the UK prior to the end of free movement) to continue living, working and studying in the UK.
1. Who needs to apply?
EU citizens and their families living in the UK prior to the end of free movement will need to apply to the scheme before the deadline of June 30th. However, those with valid indefinite leave to remain will not need to apply.
Until June 30th, there will be no change to right to work checks and until this date businesses cannot require EU, EEA or Swiss citizens to show their status under the EU Settlement Scheme. This is due to the employer's duty to not discriminate between those who have acquired status under the scheme, and those who have not.
As an employer, how to successfully verify the right to work of your workforce prior to this date remains a conundrum that the Home Office has yet to offer an opinion on. We explore this more towards the end of the article.
Providing EU, EEA or Swiss citizens have received settled status, they can provide this as evidence of their right to work in the UK. This should be verified using the Employer Checking Service in order to obtain a statutory excuse.
Employers can continue to accept the passports and national identity cards of EU citizens as proof of right to work up until June 30th 2021.
2. Types of settled status
The rights of EU, EEA and Swiss citizens living in the UK will remain unchanged until June 30th. The EEA includes all EU countries as well as Iceland, Liechtenstein, and Norway.
Successful applicants to the scheme will acquire either settled status, or pre-settled. Applicants will not be able to choose which status they are applying for as the status they are given will depend on how long they have been living in the UK.
The applicant’s rights will differ depending on which status they receive.
Settled Status
Workers will usually receive settled status if they have been living in the UK since before December 31st 2020 and have lived in the UK for a continuous 5-year period (continuous residence).
Five years’ continuous residence means that for every 5 years in a row, they have been in either the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12-month period. The exceptions to this rule can be found on the Gov.UK website.
Those who acquire settled status can stay in the UK for any length of time and will also be able to apply for British Citizenship if they are eligible.
Pre-settled Status
EU, EEA and Swiss citizens without 5 years’ continuous residence will usually receive pre-settled status. In this instance they can stay in the UK for a further 5 years from the date that they receive this. They can also apply to change this to settled status once they have 5 years of continuous residence.
3. Rights with settled or pre-settled status
Applicants who receive settled or pre-settled status will be able to:
Work in the UK
Access the NHS for free if this was something they were able to do previously
Continue studying or enrol in education
Access public funds such as benefits and pensions if eligible
Travel in and out of the UK
4. How can EU, EEA and Swiss citizens get support with their application?
Support with applications to the scheme is available by:
Calling the EU Settlement Resolution Centre on 0300 123 7379 or sending them a message using their online form: https://eu-settled-status-enquiries.service.gov.uk/start
Reading the translated guidance for the EU Settlement Scheme at https://www.gov.uk/guidance/settled-status-for-eu-citizens-and-their-families-translations
5. How do you verify an individual’s settled status?
For any workers already in your employment as of June 30th, you will simply be required to attain the employee’s letter confirming settled status. Obtaining this letter that confirms their settled status along with the previous right to work documents you held for them will be enough to demonstrate the correct right to work.
For any workers you employ after this date, you will need to carry out a check to verify their settlement status document. In order to verify this, you will need to first obtain the successful application letter issued by the Home Office. You can then run an Employer Checking Service (ECS) check through the home office to verify the document at https://www.gov.uk/employee-immigration-employment-status.
You should ensure that you have all of the individual’s information before beginning the check, including the ‘Our Ref’ number at the top of the document as well as full name, date of birth, nationality, job title and home address.
ECS checks will normally take up to five working days to come back. If you receive a positive verification notice from the Home Office in response to your check, this will verify the individual’s settled status and provide a statutory excuse.
This check will need to be completed for every EU worker you employ after June 30th to ensure your business remains compliant with the new legislation.
6. I’m an employer. What do I need to do now?
As alluded to earlier in the article, there is currently a disconnect between verifying the status of your workers before and after June 30th 2021. How as an employer, are you supposed to act like the scheme doesn’t exist until the end of June, and then suddenly obtain this document for your entire worker population and terminate the employment of anyone who hasn’t got it?
This could prove problematic, so you are advised to begin thinking about your approach now. How big of a task is this for you? One view from the legal world is that you can’t check (force them to disclose) but you can ask; it would be helpful if they were to disclose their status document now, as they will have to regardless as of the 1st of July. Due to the lack of guidance in this area though, we would recommend seeking your own legal advice on how to approach this.