Duties on Employers under the EU settlement scheme

Background of the scheme

In anticipation of the UK’s departure from the EU in March 2019 the government has established a settlement scheme for EU nationals, running from 29 March 2019 to 31 December 2020. Under the transitional scheme, EU citizens will have to apply for either settled or pre-settled status.

The former is for individuals who have lived in the UK for 5 years or more. The latter is for those who have been here for fewer than 5 years. The fee for an application for either status will be £65 for adults and £32.50 for those under 16 years of age.

Currently, in order to live in the UK legally, you must be a ‘qualified person’ which includes a job-seeker, a worker, a self-employed person, a self-sufficient person or a student. Under the transitional arrangements however, the Home Office will not be looking for this exercise of treaty rights, but simply that of residence.

What this means for employers

There is no duty or responsibility on employers to make applications for EU national employees. No onus will be placed on employers to pay for any EU national employee applications or to communicate any information to them.

A tool kit for employers will however be provided by the government, containing pre-made correspondence and other products to enable information to be passed easily to EU nationals within the organisation, if the organisation wishes to do so.

Right to Work Checks

What should be made clear is that EEA national’s right of free movement will still apply during the transitional arrangements. This right enables individuals who are citizens of EU member states, to travel to other member states to live and take up employment without having to obtain a visa to do so. As this right has not been revoked, the law surrounding checking EU national’s right to work remains the same- they will be subject to the same checks as British nationals.

Obviously more clarity will be needed as to the arrangements in the event of not reaching a Brexit deal with the EU. However, due to the significant development of the scheme and the resources put in place - it seems clear that these arrangements will be in place whether a deal is reached or not. Again, this remains to be confirmed by the government and further guidance clarifying the situation will be published by the government shortly.

Hiring EU nationals during the transitional period

Currently, once an EU national has been a ‘qualified’ person in the UK for 5 continuous years, they are able to acquire confirmation of their residence in the form of a permanent residence card. This card provides the individual with confirmation to remain in the UK indefinitely. The government has confirmed however that EU permanent residence cards will expire in December 2020 and also that those in possession of a permanent residence card can swap this for settled status at no cost.

One concern for employers however may regard hiring new employees who are EU nationals between the period of the permanent residence card expiring and confirmation of their status being granted. Although guidance on this has not been confirmed officially, one source has explained that in this situation, an individual can provide their application reference number or confirmation email as evidence of status for new jobs.

The Home Office has also confirmed that a dedicated and specialised team have been formed purely to manage the applications for either status, in order to reduce the risk of a backlog in decisions. This will hopefully reduce uncertainty in acquiring status for employees and employers who may also wish to have confirmation that an individual has either settled or pre settled status.

An additional concern comes from Caroline Nokes comments regarding treating EU nationals differently following a no deal. Currently under the scheme, free movement will continue and EU nationals will be able to continue coming into the UK until December 2020 and apply for pre settled status under the scheme. Nokes did however imply under questioning from the Select Committee that EU nationals coming to the UK after March 2019 will have to make an application to remain for longer.

This may be a concern for employers who have long term recruitment plans relying on free movement which would consequently be restricted, such as hospitals or universities. What should be made clear however is that this would be in the event of a no deal, in which no plans have of yet been confirmed and as explained, further guidance is due from the government imminently.

The end of the transitional scheme

From the 1 July 2021, all EU nationals must hold one of the two statuses. Despite no current change in the right to work checks on EU national employees during the transitional arrangements, there will be a requirement on all employers to check the status of all EU staff within the organisation by the end of the transitional scheme.

​Long term planning

As Individuals from countries outside the EU are not subject to EU free movement, in order to work in the UK, they have to be sponsored by an employer and obtain a visa to work legally. In order to sponsor these individuals, an organisation must have a sponsorship license.

The Migratory Advisory Committee published advice in August detailing that EEA nationals should be subject to the same immigration rules as individuals from outside the EU.

This means that it is possible that EEA nationals may need sponsorship to work in the UK legally and therefore, that employers may have to obtain a sponsorship license in order to employ them.

Different types of sponsor licenses can be acquired depending upon the needs of the business. For instance Tier 2 for long term workers, or Tier 5, for temporary workers. It would be beneficial to plan to implement a license if the needs of the business rely on hiring from Europe.

Stone King is able to offer support in preparing letters to EEA national employees to deal with their immigration status as well as offer support and advice on all types of immigration including licence applications, the use of the Sponsor Management system and advice on EEA nationals within an employment setting.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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