There remains a great deal of uncertainty for employers over the post-Brexit status of staff who are EU nationals. This is compounded by the continuing uncertainty over when Brexit will bite.
The primary issues for employers are two fold:
First, how can they support existing EU staff, helping them to achieve some clarity and certainty as well as future proofing their staffing needs;
Second, what will they need to do to meet their obligations
to carry out right to work checks and to be able to show that they have done
so, post Brexit.
Assisting staff – managing staffing needs
Employers can help EU staff now, by signposting the EU Settlement Scheme which opened for a public text phase in January 2019 – and will open more widely on 30 March 2019.
Further details are provided on the settlement scheme below but broadly speaking EU workers who submit the appropriate online application and pay the appropriate fee will be provided with digital proof of their ‘settled’ or ‘pre-settled’ status and right to work. This will be helpful to employers in showing they have discharged their obligations to check right to work but also in terms of meeting their staffing needs.
Some employers have gone further, with some having undertaken
to pay for their workers’ applications to the test phase of the scheme. Other ways employers may be able to help will
be by assisting with evidence of residence over the required period, for
example by providing a letter on headed paper confirming employment or details
of employer pension contributions.
EU Settlement Scheme
EU citizens living in the UK must apply under the scheme if they wish to stay in the UK post Brexit – with the exception of Irish citizens whose rights to live and work in the UK will be unaffected.
Although there remains some uncertainty over whether the effective Brexit day will be 29 March 2019 or 31 December 2020 (the end of the transition period in the Government’s proposed deal), the process and potential outcomes of application will be the same. This is because the Government has indicated that the scheme will remain the same even in the event of a no deal Brexit with the UK leaving the EU on 29 March this year.
The
Government has also announced that when the scheme opens fully on 30 March 2019
there will be no fee and anyone who has paid a fee during the test phase will
be refunded.
Settled/Pre-settled
A successful application will result in settled or pre-settled status being granted. Settled status will be granted where the applicant was living in the UK by the relevant deadline date (see below) and had lived there continuously for the previous five years. Continuously usually means the applicant has not been out of the UK for more than six months in a year.
Once settled status is granted, EU citizens will have a range of rights including the right to work and to travel in and out of the UK. Applicants without five years continuous residence by the deadline (see below) will usually be granted pre-settled status and permitted to stay for five years but must apply for settled status once they have been resident for five years. Once pre-settled status is granted, EU citizens will also be able to work in the UK and travel in and out of the UK.
Proof of settled status will be via an online service and not usually by a physical document. It is anticipated that in the future, the online service will be able to be accessed to prove rights to others – such as employers.
Deadlines
Date-wise, eligible EU citizens who wish to apply for settled status or pre-settled status under the scheme must apply by 31 December 2020 if no deal can be agreed. If the Government’s deal is agreed so that the anticipated transition period applies, the date will be 30 June 2021.
In the meantime, and up to whichever cut-off date applies, guidance from the Department for Exiting the EU states that employers will continue to be able to rely on an EU Passport or Identity Card as evidence of EU nationals’ right to live and work in the UK.
After
that date they must be able to point to settled or pre-settled status under the
EU Settlement Scheme.
Carrying out right to work checks
Employers can use the government’s online interactive tools to check if documents produced show an applicant can work in the UK and input the information that they have obtained on rights to work for their EU staff and will have some comfort from that process.
They should nevertheless ensure that they are continuing to follow Home Office guidance on acceptable documents which show entitlement to work in the UK, taking a copy, checking they look original and have not been obviously tampered with, dating the copy and keeping a record. A note should also be made of any date of expiry so that the new checks can be carried out.
Steps to
take now include making sure that appropriate right to work checks have been
carried out for all staff and renewed as required. Records should be up to date
and adequate.
Doing
this will allow employers to understand which of their staff may be affected by
the need to apply under the settlement scheme and where they may be vulnerable
to understaffing post Brexit. Uncertainties remain over timing and impact, but
the above are pro-active steps employers can take now.
Settled and Pre-settled Status
Settled status: this will be granted where the applicant is resident in the UK by the relevant date (29 March 2019 for a no deal Brexit or 31 December 2020 if the Government’s deal is agreed) and has lived here continuously for the previous five years.
‘Continuously’ usually means the applicant has not been outside the UK for more than six months in a year.
The application must be made by the relevant deadline (31 December 2020 for a no deal Brexit or 30 June 2021 if the Government’s deal is agreed)
Settled status will give EU nationals a range of rights including the rights to work and travel in and out of the UK.
Pre-settled status: this will be granted to applicants who are resident in the UK by the relevant date, but don’t have five years’ prior continuous residence. With pre-settled status, they can stay for five years, but must apply for settled status once they have been resident for five years. Pre-settled status will allow people to work in the UK and travel in and out of it.
For more details, see here.
