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EU Settlement Scheme – Employers Guide To Dealing with Employee Failure to Apply

EU Settlement Scheme – Employers Guide To Dealing with Employee Failure to Apply

The Home Office has published guidance on right to work checks for EU, EEA and Swiss citizens starting work in the UK between 1 January and 30 June 2021 (the right to work grace period) and for those starting to work on or after 1 July 2021. Employers do not have to immediately dismiss an employee who has not applied for settled or pre- settled status by the deadline date of 30 June 2021 or doesn’t have another valid visa in place.

However, this is still subject to the following very strict rules:

  • If the individual started working for their employer on or before 30 June 2020, an employer can advise the individual to make an application under the  settlement scheme within 28 days and can continue to employ them. You don’t have to do this but many employers will.
  • NB. This flexibility only lasts until the end of 2021.The guidance sets out the process that 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 2021. So if you discover that a member of your staff does not have the right to work here on, for example 1 January 2022, you will have to take immediate steps to dismiss them.

If you decide to advise the individual time to apply for settled status or pre- settled status  there are a number of steps that both  the individual and employer must take :

  • Your employee must provide you with confirmation that they have made their application within  the 28 day deadline.
  • They will receive a Certificate of Application (COA) or an email ( or letter if they submitted a paper application ), confirming receipt of their application and they must show this to you.
  • Once you have been shown confirmation of their application, you must request a right to work check from the Home Office Employer Checking Service (ECS); this will give you a Positive Verification Notice (PVN).
  • You must retain the PVN  and a copy of the individual’s application or evidence of their application, along with the initial right to work check you carried out before 30 June 2021. In doing this, this will provide you with a statutory excuse against a civil penalty for employing an illegal worker for a six month period and most importantly, and you can continue to employ them during this time.

Follow-up Checks:

Before the PVN expires you MUST do a follow-up check in order to maintain your ‘statutory excuse’  against a civil penalty:

  • If the individual has been granted status before the PVN expiry date, they can prove their right to work using the Home Office right to work online checking service. If your follow-up checks confirm that the application is pending, you will be given a further PVN for six months.
  • If the follow- up checks confirm that the application has been finally determined and REFUSED, then you will not be issued with a PVN and must take steps to terminate the individual’s employment. If you find yourself in this scenario, please immediately contact us and we will discuss the steps you need to take.

Making a late application for settled status or pre settlement status after 30 June 2021

  • Any individual who missed the deadline of 30 June 2021 by which to make their claim for settled or pre- settled status will have to persuade the Home Office that they had a ‘reasonable excuse’.
  • Many will rely on  ‘compelling and compassionate reasons’ as this is a broad category and covers anyone who was unaware of the need to apply, perhaps because they did not have internet access or had limited computer literacy or limited English language skills,  lacked the relevant evidence or were unaware they could rely on expired documents etc.

If you have discovered that one of your employees has failed to apply for settled or pre- settled status, and need help to work through what actions you need to take, don’t hesitate to reach out to us at legal@lexleyton.co.uk.

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