What should employers do if an employee has not applied to the EU Settlement Scheme?
With the EU Settlement Scheme application deadline looming, the Home Office is urging European citizens in the UK to apply before it’s too late.
EU, EEA and Swiss citizens who were living in the UK by 31 December 2020 have until 30 June 2021 to file an application under the EU Settlement Scheme. European nationals who fail to apply for settled or pre-settled status under the scheme risk losing their right to continue living and working in the UK.
As the deadline approaches, UK employers are strongly advised to ensure their eligible employees are aware of the need to apply if they have not already done so. But what will the consequences be for employers if any EEA employees have not applied to the scheme by 30 June?
The Home Office guidance for employers on right to work checks sets out transitional measures in place to provide some flexibility after the deadline, and sets out the steps employers should take if they identify an employee has not applied by the end of the month.
Right to work checks for EEA citizens
Under UK immigration law, employers play an integral part in preventing illegal working. Central to this is the right to work scheme, which requires employers to perform initial checks on each individual they intend to hire, to confirm they have the necessary permission to work in the UK.
After the Brexit grace period ends on 30 June 2021, EEA citizens require lawful immigration status in the UK and must be able to provide evidence of this in the same way as other foreign nationals. This means that from 1 July 2021, employers can no longer accept EEA passports or national identity cards as evidence of an individual’s right to work in the UK.
EEA Citizens without lawful immigration status after 30 June 2021
Employers are not required to carry out retrospective right to work checks on EEA nationals whom they employed before the deadline, although they can choose to do so if they wish. According to the Home Office guidance, employers will have a continuous statutory excuse against a civil penalty if an initial right to work check was carried out before 30 June 2021.
However, you should not employ any EEA citizens after this date if they have not applied to the EUSS by the deadline and they have no alternative immigration status in the UK.
Where you have chosen to carry out retrospective checks or an internal audit and have identified an EEA citizen in your workforce who has not applied to the EU Settlement Scheme and does not hold any other form of leave in the UK, you may not need to terminate their employment. However, there are steps you will need to take in these circumstances, as outlined in the guidance.
EEA citizens employed before 30 June 2021
As a transitional measure, the Home Office guidance sets out the process employers may follow until 31 December 2021 where they have identified that an EEA citizen in their workforce has not applied to the EU Settlement Scheme by 30 June.
You do not need to cease employment at the time you identify an employee without a lawful status in the UK, but the EEA citizen must have been employed by you in the UK before the end of the grace period on 30 June 2021.
In such circumstances, employers should:
1 – Advise the employee that they must apply to the EU Settlement Scheme within 28 days and provide you with a Certificate of Application (CoA). If they do not make an application within 28 days, you must take steps to cease their employment in line with right to work legislation.
2 – Once you have received the CoA, you must contact the Home Office Employer Checking Service (ECS) to confirm the employee has applied. When contacting the ECS, you may be asked to provide evidence of the start date of the individual’s employment.
3 – Where an application has been made, the ECS will provide you with a Positive Verification Notice (PVN). Retaining this PVN and a copy of the employee’s CoA will protect you against a civil penalty for six months. During this time, the individual may maintain their employment with you whilst their application is being concluded.
4 – Before the PVN expires, you must complete a follow-up check with the ECS in order to maintain your statutory excuse against a civil penalty. If the employee has been granted status before the PVN expires, they can prove their right to work by using the Home Office right to work online service.
5 – If the follow-up check confirms that the application is pending, you will be provided with a further PVN for six months and would then need to repeat step 4 until such time as the application has been finally decided. If the follow-up check confirms the application has been refused, you must take steps to cease the individual’s employment.
6 – Employers are advised to record and maintain accurate records of checks and actions taken.
28-day Immigration Enforcement notices
The Home Office has confirmed that EEA citizens will be given a further opportunity to apply to the EU Settlement Scheme if they have ‘reasonable grounds’ for missing the application deadline. Caseworker guidance has been published to establish a wide range of circumstances that would be considered reasonable grounds.
From 1 July 2021, where Immigration Enforcement identify EEA citizens or their family members who are working without status, they will be given a written 28-day notice before action is taken, giving them an opportunity to make a late application to the EU Settlement Scheme citing their reasons for missing the deadline.
Support with post-Brexit immigration compliance
If your business needs support with any aspect of immigration compliance, Smith Stone Walters can help. From conducting a mock audit and reviewing your internal procedures, to ongoing support with managing your sponsor licence, our team are on hand to provide the practical support and guidance you need to remain compliant.
To speak to an immigration advisor, please contact us today.
