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Settling the Unsettled: Pre-Settled and Settled Status for EU nationals

Posted on 22 March 2019

Settling the Unsettled:  Pre-Settled and Settled Status for EU nationals

With the Prime Minister still looking for a deal with Brussels that will win a majority support in the House of Commons, companies have to prepare for a host of uncertainties.  While businesses of all sizes attempt to make preparations for the UK's departure from the European Union, what should businesses be doing to secure the immigration status of their European workforce in the UK once free movement – the doctrine which gives EEA nationals the right to seek work, work, study, be self-employed or self-sufficient in another member state without the need for a visa - comes to an end?

According to the Office for National Statistics, there are 2.27 million EU nationals currently working in the UK: a decrease of 61,000 from one year ago.  No doubt the effects of 2016 referendum are being felt by our European workforce.  

For the first time in generations, European nationals have to think carefully about their immigration status in a way once reserved for those coming from outside the bloc.  Visas, vignettes and validity periods were not at the forefront of European nationals' minds thanks to the free movement rights.  Trying to balance political policy with practical procedure, the Home Office has launched a new EU Settlement Scheme designed to be a swift, technologically advanced system for Europeans wishing to secure documentation issued under UK law rather than European provisions in order to secure their immigration status in the UK.

EU Settlement Scheme

While exercising free movement rights under the European Regulations, a European national acquires permanent residence by right after five years in the UK, regardless of whether the individual has a document to evidence this status. While there was no legal obligation to make such applications under the European Regulations, European nationals who wanted official recognition of their time spent in the UK could make applications for official documentation to evidence their status in the UK.  The length of time the individual had been in the UK would determine the type of application they would make: for those in the UK for five years or less, a registration certificate application could be made; for those in the UK for five years or more, an application to document their permanent residence could be made.

With the UK's withdrawal from the EU, European laws will cease to apply in the UK and the Home Office has confirmed that European nationals who wish to remain in the UK after the UK leaves the EU will need to apply for documentation under a new "EU Settlement Scheme".

The EU Settlement Scheme, entrenched in UK law, follows the same timeframe for the qualifying period for permanent residence as the European Regulations.  Under the new scheme, a European national living in the UK for less than five years can make an application for "pre-settled" status.  If they have been in the UK for five years or more, they can make an application for "settled" status.   The crucial difference between the EU Regulations and the new EU Settlement Scheme is that EU nationals will be obligated to make an application for such documentation in order to be legally in the UK. 

The application process has been promised by the Prime Minister to be 'simple and straightforward', with European nationals and their family members being required to evidence just three key requirements: their identity, evidence of their UK residency and that they do not have any criminal convictions. Most applicants receive a decision within days and therefore future-proof themselves whatever the outcome of negotiations with Brussels.

Brexit with a deal

In the event a deal is agreed, it is expected that a transitional period will be in place during which time European nationals and their family members will continue to be able to enter the UK to live, work or study without any immigration restrictions being imposed until 31 December 2020.  European nationals and their family members who are living in the UK by this date need to apply for a document issued under UK law which evidences their right to live, work and study in the UK by applying for either "settled" or "pre-settled" status in the UK under the EU Settlement Scheme.

If the UK leaves the EU with a deal, the deadline to apply for settled or pre-settled documentation will be 30 June 2021. 

Brexit without a deal

In the event no deal can be agreed but the UK leaves the EU, it is expected that free movement will end as soon as possible and could be the date the UK leaves the EU.   European nationals and their family members will need to apply for documents issued under the EU Settlement Scheme for settled or pre-settled documentation no later than 31 December 2020.

European nationals living in the UK after the relevant deadline date who have not applied for documentation will be considered to be in the UK unlawfully, even if they hold a Registration Certificate, Residence Card or Permanent Residence document issued under EU law. 

European nationals coming to the UK after Brexit

European nationals will still be able to enter the UK using their European passports after Brexit without having to apply for a visa.  They will be granted permission to enter the UK for a period of three months and they may work in the UK on this permission.  If they are still required in the UK beyond three months, European nationals will need to apply for an extension visa under the EU Temporary Leave to Remain scheme.  Their visas can be extended for a maximum of three years, and cannot be extended further.  After three years, European nationals will need to apply for a visa under the UK's immigration rules which will be in place at the time.  However, it is important to bear in mind that there may not be an available visa category.

What does this mean for UK businesses?

What does this mean for businesses that rely on a European workforce in the UK? Employers should conduct a full audit of their workers in the UK to identify employees who will need to obtain settled or pre-settled status between Brexit and the relevant deadline date. 

It is important for businesses to communicate the requirement to obtain the necessary status under the EU Settlement Scheme to their workforce and monitor when applications are being submitted. Employers should ensure they see any settled or pre-settled status documents as soon as they have been received by the worker and that copies are taken to keep on the worker's HR file as evidence of their right to work in the UK. 

In this way, should any employee fail to obtain the necessary paperwork and become illegal in the UK, those who are non-compliant will be already known and the company will be well-placed to take immediate action to minimise any exposure to the risk of illegal working and the associated fines (currently up to £20,000 per illegal worker) and criminal sanctions.

Whether you are a business or an individual wishing to cement your UK immigration status, Mishcon is here to help. Please contact one of our expert immigration lawyers to find out how Brexit will affect your company and what we can do to ensure business continuity.

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