Our lives have all been impacted by the latest lockdown. While we all focus on dealing with the challenges that lockdown brings, it is easy to overlook other important changes. One such change to be aware of is the rules that govern the rights of EU citizens to live in the UK.
To remain in the UK, EU, EEA, or Swiss citizens will need to be living in the UK by 31 December 2020 and must apply to the EU settlement scheme by 30 June 2021.
Businesses employing EU, EEA, or Swiss citizens will need to obtain evidence of their status under the scheme in order to comply with right to work checks. It’s important therefore that you ensure that your employees are aware of these changes and that they update you on the progress of their applications.
Status under the EU Settlement Scheme
Individuals will either be categorised as settled or pre-settled.
To obtain settled status an individual will need to have lived in the UK for a continuous period of 5 years. An individual with settled status can stay in the UK indefinitely and may apply for British citizenship if they’re eligible.
Pre-settled status is granted to individuals who have not yet resided in the UK for a continuous 5-year period and affords them the right to remain in the UK for 5 years. Pre-settled individuals will therefore be able to apply for settled status once they meet the 5-year residency criteria.
Who needs to apply?
Any EU, EEA, or Swiss Citizens who wish to continue living in the UK but do not currently have indefinite leave to enter or remain will need to apply.
These individuals need to apply even if they:
• have a permanent residency card;
• are the family member of an EU, EEA, or Swiss citizen who does not need to apply; or
• are the family member of a British citizen.
The following individuals do not need to apply:
• Individuals that have indefinite leave to enter or remain in the UK (these individuals may choose to apply for settled status).
• Irish citizens.
• Frontier workers (those who work in the UK but do not live here).
• Individuals who are exempt from immigration control.
Although individuals will be issued a letter confirming their application has been successful, this cannot be used as proof of their status. Instead, they will receive a share code that can be given to you which can be used to check their status of their through an online portal.
What if the application for settled status fails?
The employee will have the right to appeal the decision and whilst there is currently no guidance on this, we understand that the employee should be permitted to remain and work whilst the appeal is considered. If the appeal then fails, you will need to look at effecting a dismissal because your employee would not be eligible to work in the UK (an illegality dismissal). You should always take advice when dismissing in these circumstances, even if the employee has less than two years’ service.
If you have any further questions on the EU settlement scheme, please contact us.