Brexit and the EU Settlement Scheme

Free movement of workers between the UK and the EU will end at 23:00 on 31 December 2020 and be replaced by a UK points-based immigration system.

EU citizens living in the UK as at 31 December 2020 have the right to continue to work in the UK without a work visa until 30 June 2021. They also have the right to continue working in the UK beyond that date provided they apply under the EU Settlement Scheme (EUSS). What happens next depends on whether they are granted Settled Status or Pre-Settled Status.

• Settled Status allows an individual to remain in the UK indefinitely and to apply for British citizenship (assuming they want to, and provided they meet additional criteria). To be eligible for Settled Status the individual must:
  • live in the UK as at 31 December 2020
  • have lived in the UK for a continuous* period of five years.
    * continuous is defined as at least six months in any 12 month period.

• Pre Settled Status allows an individual to remain and work in the UK for five years, and also allows the individual to apply for Settled Status once they have five years continuous residence. To be eligible for Pre Settled Status the individual must have started living in the UK by 31 December 2020.

Employers should aim where possible, to ensure recruitment is timed so that shortlisted EU candidates are living in the UK before 31 December 2020. The same applies to any internal transfers involving EU nationals. If you fail to meet the deadline you will need to apply for a work visa under the points-based system. In most cases you will also need a UK Sponsorship Licence.

Obviously it is impossible to accelerate all future recruitment requirements ahead of 31 December 2020. If EU nationals are likely to be part of your 2021 recruitment plans, it would make sense to apply for a Sponsorship Licence now.

The application for Settled or Pre Settled status must be made by the individual, not their employer. This presents employers with a problem. EU nationals have an unfettered right to work in the UK until 30 June 2021. The UK Government has issued a clear statement that up to this date it would be discriminatory to ask an employee whether they have made an application, or enquire as to the outcome of any application.

Until 30 June 2021 an employer’s ‘Right to Work’ check for any new employee, is limited to checking an EU national’s passport or ID card. It is unlawful to ask whether they have Settled or Pre Settled status or whether they have applied under the EUSS.

You may discover on 1 July 2021 that your existing and recently hired EU employees do not have Settled or Pre Settled status and are therefore working illegally.

Given the UK Government’s statement on the discriminatory nature of performing checks now, employers can only inform their employees of the EUSS and encourage them to make an application. It is hoped the UK government issues further guidance on this area, to help employers comply more easily in future.