In summer this year, the immigration rules were tightened for EU, EEA and Swiss nationals and their family members (EU nationals) living and working in the UK as a consequence of Brexit.
With the exception of Irish nationals, from 30 June 2021, EU nationals who were living in the UK by 31 December 2020 were, for the first time, required by law to apply to the Home Office for the grant of immigration status in the UK due to free movement rights coming to an end. EU nationals should have applied for the grant of either Pre-Settled or Settled Status under the EU Settlement Scheme in order to retain permission to live, work and study in the UK (see box below).
As failure to apply for status under the EU Settlement Scheme by the 30 June 2021 deadline means that the EU national will be illegally in the UK, this immigration requirement for EU nationals impacts each individual's right to work in the UK.
Key issues for businesses include:
- Employers are not required to undertake retrospective right to work checks for EU nationals who were employed before 30 June 2021. Provided the checks were undertaken correctly, employers will have a statutory excuse against a fine for illegal working should it transpire the EU national failed to make the required application to protect their UK immigration status. However, should employers carry out a retrospective check, or should it come to light that an employee who should have applied to the EU Settlement Scheme by the deadline of 30 June 2021 failed to do so (and they do not hold any other visa to allow them to live and work in the UK), employers must take the following steps:
- Advise the employee that they must make an application to the EU Settlement Scheme within 28 days;
- Within that 28-day period, employers must be satisfied that the employee has made the required application. If the employee fails to do so, employers should take steps to cease the employee's employment in line with right to work legislation. If the employee does make the application, the employer must receive a copy of the employee's Certificate of Application and make a request to the Home Office's Employer Checking Service (ECS) for a verification that the employee continues to have a right to work;
- The ECS will provide either a positive or negative verification of the employee's right to work. If a positive verification is received, this must be kept on file along with the employee's Certificate of Application to provide the employer with a statutory excuse against a fine for six months. This should be sufficient time for the EU Settlement Scheme application to be processed by the Home Office;
- Once the employee has been granted status under the EU Settlement Scheme, employers must conduct an online right to work check to verify the employee's grant of leave. If the decision on the EU Settlement Scheme application is not decided within the six-month validity of the ECS positive verification, employers must make a follow-up ECS request before the ECS expires. They must continue this until there is a decision on the application.
- Employers should consider applying to the Home Office for a sponsor licence (if not already in place) as soon as possible to ensure the company is ready and able to sponsor employees for Skilled Worker visas if required. This would be required if the employee does not qualify for status under the EU Settlement Scheme.
- Companies which already have a sponsor licence should consider the business' medium-term skilled labour needs and apply for increased certificate of sponsorship allowance to bring in foreign skilled labour.
Rights to work for EU nationals
EU nationals and their family members who were living in the UK by 31 December 2020 should have made applications under the EU Settlement Scheme by 30 June 2021 in order to protect their residence rights in the UK. If their applications are approved, they will have the required immigration status in the UK to continue living, working, and studying in the UK. Additionally, they will continue to have access to healthcare and other benefits and services in the UK.
From 1 July 2021, any EU national or their family members who were living in the UK by 31 December 2020 under free movement rights and did not make applications by the deadline are in the UK unlawfully. As such, their residence rights are not protected in law, regardless of the length of time they have been in the UK. This impacts their right to work and study, right to rent, and right to access healthcare and other benefits and services in the UK.
The Home Office is accepting late applications to allow EU nationals and their family members who should have made applications by 30 June 2021 to submit. Applicants must have reasonable grounds for missing the deadline and the Home Office has confirmed that it will look for reasons to approve rather than refuse applications.
EU nationals and their family members who arrived in the UK from 1 January 2021 now require a visa under the UK's immigration rules. Changes to the UK's immigration rules were made in December 2020 to widen the scope for obtaining a "work permit" visa, now known as a Skilled Worker visa.