As we edge closer to Brexit on 29 March 2019, EU nationals and their family members need to ensure that they properly understand the EU Settlement Scheme, as it will be fully operational, regardless of whether or not there is a deal. From an employer’s perspective, it is also essential that they are up to speed with the Scheme, not only to help guide their employees through the process, but to ensure they do not unwittingly become employers of illegal workers.
When to apply?
The Scheme is already open in test phase to all EU citizens and to those family members that already hold a biometric residence permit. As noted, the Scheme will be open to all from 30 March 2019. There are different deadlines to apply, depending on whether or not there is a deal: 30 June 2021 if the UK leaves with a Withdrawal Agreement; or 31 December 2020 if the UK leaves without a deal.
How to apply?
You can use the Home Office’s ‘EU Exit: ID Document Check’ app to confirm your identity, although, remarkably, the application will only work on android phones. Originally there was an application fee of £65 but this has since been abolished, with prior application fees to be refunded.
To apply you need to prove your identity and nationality and demonstrate continuous residence in the UK by providing your National Insurance number. You must also declare any criminal convictions. If successful, you will be sent an email confirming your status and the date it was granted, with a unique reference number. This will be your proof of status; no physical document will be provided. Although non-EU family members will receive a biometric residence card if they do not already have one.
Status
You will usually get settled status if you have:
- started living in the UK by a cut-off point, which is 31 December 2020 if there is a deal, or 29 March 2019 if there is no-deal, and
- have lived in the UK for a continuous 5-year period.
You will usually get pre-settled status if you have:
- started living in the UK by a cut-off point, which is 31 December 2020 if there is a deal, or 29 March 2019 if there is no-deal, and
- have not lived in the UK for a continuous 5-year period when you apply
You can then apply to change this to settled status once you have accrued 5 years’ continuous residence.
How does this affect Employers?
Employers should identify those who must be registered under the EU Settlement Scheme. You should consider family members of EU nationals, who often get overlooked. For example, a Nigerian national may be deriving his immigration status from his French wife, and he would therefore also require status under the scheme.
From an employee- relations perspective, employers should consider what level of support they are willing to provide. Although there is no legal obligation to assist employees with the registration process, many employers offer practical support and resources to their employees, for example, by hosting workshops to provide up to date information.
Employers should also make use of the government’s guidance via the EU Settlement Scheme: employer toolkit which equips employers with the right tools and information to support EU citizens and their families. You can also sign up for further updates.
Employers may also want to ensure all relevant organisational policies and processes are compliant with Right to Work checks. They should ensure that they have adequately trained staff to perform checks correctly and in a matter that does not discriminate against individuals.
Employers have a duty to prevent illegal working. Those who employ someone without the right to work in the UK can face a civil penalty of up to £20,000. If correct Right to Work checks are undertaken, they will have a ‘statutory excuse’ against any civil penalty.
