Employers with EU nationals in their workforce have a vested interest in actively helping and encouraging them to apply for Settled Status before 31st October 2019.
The Secretary of State for the Home Office, Priti Patel, confirmed in a statement that freedom of movement for EU nationals will end on 31st October, should the UK leave the EU without a deal.
With recent reports of Boris Johnson confirming a Brussels walk-out of UK officials the political rhetoric suggests that it is increasingly likely that Britain will be leaving the EU on 31st October 2019 without a deal which, unless some last-minute agreement is reached, will categorically mean the end of free movement.
In this scenario, EU workers may encounter difficulty proving their entitlement to live and work in the UK because they cannot prove their status.
What can your EU national employees apply for and by when?
The government confirmed on 19th August 2019 that EU citizens and their families are welcome to stay in the UK and there are no changes to the deadline to apply (31 December 2020) to the EU Settlement Scheme, which covers all EU citizens and their families living in the UK by 31st October. They are also still permitted to make applications for permanent residence under the Immigration (European Economic Area) Regulations 2016.
EU nationals therefore have the right to apply for either;
- permanent residence (on or before 31st October 2019) or;
- settled/pre settled status under the EU Settlement Scheme (on or before 31 December 2020).
However, if free movement ends on 31st October, EU nationals who have not applied for or obtained settled status will lose the ability to demonstrate that they are entitled to live and work in the UK.
Settled status is given to EU nationals who can simply prove they have resided in the UK for a minimum of five years, and pre-settled status is for EU nationals who have been living in UK for less than five years.
It has been reported that 1 million EU citizens have already applied for Settled Status under the EU Settlement Scheme however with an estimated 3.2 million EU nationals living in the UK why aren’t the numbers much higher?
Which application is the best option for my EU employee?
Much confusion has arisen around which application to make for many EU nationals, especially if UK citizenship is something they want to achieve quickly.
If a person can prove they have been a qualified person for more than 6 years, they should apply for permanent residence as citizenship can then be applied for immediately upon receipt of an UK Permanent residence card.
However, on receiving settled status a person has to wait a minimum of 12 months before applying for citizenship as it is a requirement for British citizenship that they have been free from immigration control for a period of 12 months.
So if citizenship is not the ultimate goal, then applying under the EU settlement scheme is the most appropriate option.
Failure to apply
Concern has been raised that EU citizens who do not apply for either form of documentation by the relevant deadline may end up not being able to prove their right to live and work in the UK.
Potentially, EU citizens who automatically acquired permanent residence in the UK under freedom of movement could face the same hostile treatment experienced by the “Windrush generation”: entitled to stay in the UK or re-enter the UK but unable to prove it.
As an employer, you could be left in a very difficult position of:
- losing valued EU national employees;
- not knowing whether you are compliant with your duty to prevent illegal working due to lack of documentation, even if you hold a copy of a worker’s EU passport on file; and
- being exposed to claims of unfair dismissal if you dismiss employees for lack of evidence of their immigration status.
What can you do?
Employers can manage this situation by providing their staff with knowledge and legal support e.g. bringing in an Immigration Law specialist to inform and advise staff or simply encourage staff to seek legal advice themselves.
How can we help?
If your staff are undecided about applying for settled/pre-settled status under the EU Settlement Scheme, or applying for permanent residence, or if you want to know how to get your business and employees “Brexit-ready”, we offer the technical expertise and practical support that you need to eliminate uncertainty as far as possible.
Services we can offer
- help and support to your HR teams on Brexit and managing your EU national workforce;
- training and advice to staff on the processes in applying for residence either under the EEA regulations or the EU Settlement Scheme; and
- assistance in applying for a sponsorship licence which will permit you to hire migrant workers.
- advice and support in applying for permanent residence and subsequent British citizenship; and
- advice and support on applying for Settled or pre-Settled status.
We at Winckworth Sherwood take a holistic approach to advising our corporate clients on immigration and employment related matters. If you have any concerns, or require further information on the respective paths to settlement for your EU national staff after Brexit, or if any of your workforce, whether EU or non-EU employees require assistance with making an application to remain in the UK, please contact Kezia Daley of our Immigration team.