Following the UK’s decision to leave the EU, the EU Settlement Scheme was established by the UK Government in 2019. The key purpose of the Scheme is to provide a mechanism for EU nationals to maintain their right to reside in the UK post-Brexit, whilst at the same time enshrining those residence rights in domestic UK law.
In the first of a series of Insights on Brexit-related changes to the UK immigration system, we consider the requirements of the Settlement Scheme and what steps employers should be taking in relation to their staff before the end of 2020.
EU, EEA and Swiss nationals are eligible to make an application, as are certain non-EU/EEA/Swiss family members of EU, EEA and Swiss nationals. In the remainder of this Insight, references to the term “EU nationals” should be taken to also include EEA and Swiss nationals.
Individuals with indefinite leave to enter the UK, indefinite leave to remain in the UK and nationals of the Republic of Ireland do not have to apply.
Although the UK left the EU on 31 January 2020, a transition period is currently in place and EU rules on free movement of people will continue to apply until 31 December 2020. Subject to some limited exceptions, EU nationals (and certain family members) who are resident in the UK on or before 31 December 2020 will be eligible to make an application under the Scheme. Eligible applicants who meet the residence deadline will then have until 30 June 2021 to complete the application process.
The application process is designed to be user friendly and involves residence, identity and criminal record checks. Depending on an individual’s period of residence in the UK, they can either be granted “settled status” (in essence, permanent residence) or “pre-settled status” (time-limited residence that can be potentially converted to settled status at a later date). For as long as individuals hold relevant status under the Scheme, they can continue to live and work in the UK.
Applications can be made and documents submitted via an app on mobile devices, often eliminating the need for hard copy documents to be provided. The Home Office states that it usually takes five working days to process a straightforward application where no further information is required. However, more complicated applications (such as where further information/clarification is required by the Home Office) can take over a month to resolve.
Unsurprisingly, with various changes to the immigration system on the horizon, the number of applications to the Scheme has been significant. Government figures show that just over 4 million applications were received as of 30 September 2020, with 95% resulting in the grant of settled or pre-settled status.
Ensuring eligible staff members make an application to the Scheme should remain a high priority as we head towards the end of the year. There is no need for employers to be involved in the application process for individual applicants, but it would be wise to encourage eligible staff to make applications without delay. This is key to avoiding future business disruption and potential illegal worker penalties.
Individuals who may be required to make a Scheme application can be identified via audits of existing right to work documentation. The Government has also produced materials that can be displayed in workplaces to remind individuals of the need to apply.
From 1 January 2021, a new immigration system will apply that will cover both EU and non-EU nationals – meaning EU nationals arriving in the UK after this date will need a visa to live and work in the UK. Those who have been granted settled or pre-settled status under the Settlement Scheme will continue to be governed by the rules of that scheme (and will not be governed by the more onerous new rules).
The change in immigration rules could negatively impact future staff supply, as migration to the UK will be more difficult for EU nationals after the end of the transition period. This will be a particular problem in sectors where EU nationals have traditionally been employed in low-paid roles that the Home Office would consider to be “low skilled”.
Where possible, employers should keep existing recruitment strategies under review. Where EU nationals have been identified for roles, it would be prudent to assess whether their presence in the UK before the end of the year is feasible – thereby eliminating the need for compliance with the more stringent new rules. Of course, Covid-19 quarantine arrangements may be relevant when formulating travel plans.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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