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Post Brexit – Employee Settled Status And Pre-Settled Status

settled status

In the week when the UK Government announcing proposals for a points-based immigration system, we consider the position of the EU citizens already living and working in the UK.  3.2 million applications have already been received by EU citizens seeking permission to remain and work in the UK. With business leaders concerned about meeting the flexibility of the UK workforce to meet future labour market demands, here is LexLeyton’s guide on what UK employers ought to know about the EU Settlement Scheme.

Even though freedom of movement continues to apply for EU citizens during the transition period, on 31 December 2020, EU citizens will no longer have an automatic right to live and work in the UK.

EU citizens currently living in the UK need to apply for ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme.

30 June 2021 is the deadline for applying; not for being granted either settled or pre-settled status.

How should employee choose between Settled Status or  Pre-Settled Status:

Employees that have continuously been in the UK for 5 years or more can apply for settled status.

They will have five years’ continuous residence as long as they have been in the UK for at least six months in any 12 months period for five years in a row.

The exceptions to this rule are:

  • A period of 12 months living outside the UK for an ‘important reason’, for example, childbirth, study, vocational training, serious illness; or
  • Compulsory military service of any length of time.

Settled status will entitle an employee to stay and work in the UK for as long as they wish. However, the settled status can be lost if an employee lives for more than five years in a row outside of the UK.

Employees that have been in the UK for less than 5 years can apply for pre-settled status.

Pre-settled status will allow an employee to  remain in the UK for a period of five years from the date they are given pre-settled status. Upon expiry of that five year period, they will be required to apply for settled status should they wish to remain in the UK for longer. However, they do not have to wait until the end of the five-year period and can apply for settled status as soon as they have reached five years’ continuous residence.

An employee with pre-settled status has  the same rights as those with settled status but cannot spend more than two years in a row outside of the UK in order to retain their pre-settled status.

If your employees do not apply to one of these schemes, they will no longer be legally recognised as a resident of the UK and will not be allowed to work in the UK after 31st December 2020.

Which employees are eligible:

  • EU, EEA or Swiss citizens
  • A Relevant family members of an EU, EEA or Swiss citizen.
  • If they are currently living in the UK

Employees do not need to apply if:

  • They are an Irish citizens
  • They have an Indefinite Leave to Enter or Remain in the UK

What do employees need in order to apply:

  • First of all, employees should be aware that there is an official step by step Home Office Guidance on the scheme.
  • Employees can download an app on the Google Play app store, by searching for ‘EU Exit: ID Document Check’. The official app is made by ‘UK Visas and Immigration’. The app is supposed to work on iPhones as well but works better on Android. If your employees do not have smart phones, they will have to go to an Identity Document Scanning Location. Please see a list of those locations.
  • Employees are required to prove their identity and nationality. To be able to do this, their passport or identity card must have a biometric chip installed, which is usually indicated by a gold camera-like image. If they don’t have a biometric document, they can send their passport or identity card via post to the Home Office.
  • Employees must prove their residence in the UK. Their national insurance number (NIN) should be sufficient for the Pre-Settled status to allow automated checks to be undertaken by HMRC. To prove their continuous residency in the UK for five years or more they might also have to upload documentary evidence digitally such as an annual bank statement with their address. However, employees should not worry if they lack physical evidence. The UK government will be able to check their continuous residency by scanning through Her Majesty Revenue and Customs (HMRC) and the Department for Work and Pension (DWP) databases.

What else should employees know:

  • The application process takes around 30 minutes.
  • The average time taken to receive a decision is less than nine calendar days.
  • As of the date of this guidance, there is no cost to make an application for either settled or pre settled status (there used to be a fee until 21 January 2019).
  • If an employee is successful, they will receive an email confirmation of their settled or pre-settled status. If their application is not successful, they can apply for this to be reviewed. They can also re-apply as many times as they want before the 30 June 2021 deadline.

As an employer, what are you entitled to do in respect of all of the above:

  1. Communicating with staff about the EU Settlement Scheme

Employers are under no legal obligation to communicate the EU Settlement Scheme to staff.

However, for employers that want to make sure that their employees are aware of the upcoming changes, the Government has drafted a EU Settlement Scheme: employer toolkit which includes different documents that can be communicated to employees.

In particular, there is a template letter that employers can send to all of their EU staff:

When communicating the toolkit, employers should be careful not to interpret information on the EU Settlement Scheme or to provide immigration advice unless they are qualified to do so.

What are the actual risks?

  • The first risk would be to give incorrect advice to employees that could cost them their settled status and eventually, their right to work in the UK. In this scenario, employee could raise a claim against their employers.  
  • A second risk would be a discrimination claim from non-UK and non EU citizens against their employers.  For example, if an employer gives guidance to its employees who are EU citizens, but not to non-EU citizens, on the rights to remain and work in the UK, it may expose the business to allegations of discrimination.
  • Duty not to discriminate against EU citizens

There is absolutely no requirement for the employee to inform their employer that they have applied or the outcome of their application. Employers are also not entitled to check that their employee have applied.  This does not prohibit an employer from carrying out the proper Right to Work checks for staff.

Employers should never make an offer of employment, or continued employment, dependent on an individual having made an application. Doing so could open the door to a  discrimination claim.

In summary, employers should be informed and consider the guidance the Government has provided.  If in doubt, contact LexLeyton for a sounding board on dealing with the business challenges arising from Brexit.

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