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What should employers be doing now?

We are now only a matter of days away from the deadline to apply under the EU Settlement Scheme (EUSS). EU, EAA, Swiss nationals and their family members living in the UK by 31 December 2020 have until 30 June 2021 to register. It is a crucial time for employers to be encouraging their workforce to apply under the EUSS in order to ensure that eligible applicants maintain their ability to continue living and working in the UK. Businesses who have been proactively encouraging their staff to ensure that they have applied, now need to be stepping-up their communications to ensure that the workforce are reminded of the forthcoming deadline and made aware of the implications of failing to apply. Whilst employers can’t insist that their staff apply or require evidence of them having done so, inviting staff to share this information with them voluntarily will not only allow businesses to monitor the uptake, but also support staff who have received ‘pre-settled’ status to track when their application to upgrade their status will be due.

What if workers fail to apply in time?

The starting point is that those who fail to apply will no longer be lawfully resident in the UK. There are a limited number of grounds on which the Home Office will review an application which has been submitted beyond the deadline. Applicants must have ‘reasonable grounds’ for making a late application and the guidance provides a non-exhaustive list of grounds which includes a delay due to a ‘serious medical condition’ and ‘compelling practical or compassionate reasons’. It is understood that a flexible and pragmatic approach will be adopted, at least at the outset, towards late applications but it is certainly preferable that applicants avoid reliance on such latitude by ensuring the application is made in time wherever possible.

The updated employer guidance in this area suggests that, until December 2021, where an employer identifies that an employee has failed to apply in time, the employer does not need to dismiss the employee immediately but instead should provide the employee with a period of 28 days to make the application and to provide the employer with a Certificate of Application. Only if they fail to make the application within that period, should the employer take steps to dismiss. Any such dismissal must, however, be carefully handled. Where an employer is provided with the Certificate of Application, the employer must use the checking service to confirm the application has been submitted and in doing so the employer will secure a statutory excuse against a civil penalty for 6 months allowing the application to be processed. Thereafter a repeat check must be conducted.

What are the alternative immigration routes for those who don’t qualify under the EUSS?

The most common routes to secure the ability to work in the UK will be via sponsorship, including the Skilled Worker and Intra-Company Transfer routes. Businesses will need to assess whether they have the requisite sponsor licence and, even if this is in place, they will need to assess the skill level, salary levels and other qualifying criteria to determine whether an individual can be sponsored to work in the UK.

There also remains the frontier worker permit which allows individuals to travel to the UK for work while living outside the UK. However, this will only be applicable to those who started working in the UK before 31 December 2020 and who have come to the UK at least once a year since they commenced working here.

What about those whose continuous residence has been affected by the COVID-19 pandemic, are there any concessions?

In recent weeks an updated guidance document has been published setting out the circumstances in which it may be possible to apply for settled status under the EUSS where continuous residence has been broken by absence from the UK where that absence is because of the coronavirus. Whilst previously the guidance suggested that only absence because of illness with coronavirus would be permitted to be taken into account, the updated guidance indicates that there is greater scope for account to be taken of other coronavirus-related reasons including remaining outside the UK because of there being fewer restrictions elsewhere. Applicants are encouraged to obtain and submit with their applications evidence of their absence and the basis for it.

Right to work checks – what about workers who joined us after 1 January 2021 (but before 1 July 2021)?

Due to the grace period that has applied following the end of the Brexit transition period which allows applications to the EUSS until 30 June 2021, no changes apply before that date to employers’ right to work checks. To avoid discrimination, employers are prevented from requiring employees to show proof of their status under the EUSS. Employers remain able to rely on passport or national ID cards as valid proof of ID. This is despite the fact that eligibility to apply under the EUSS applies only to those who arrived before 31 December 2020, and therefore anyone who arrived after that date will likely require sponsorship to be eligible to live and work in the UK. Employers are not expected to undertake retrospective checks and reliance can be placed on the checks that were carried out to maintain the defence against a civil penalty. However, where an employer is aware or has reasonable grounds to believe that the individual does not have immigration permission to be in the UK, they will be committing a criminal offence by continuing their employment. Whilst we still await further guidance from the government on this issue, those employers faced with this knowledge should seek legal advice.

What do we know about the changes to the right to work checks post 1 July 2021?

We currently have the draft Code of Practice setting out the changes to right to work checks from 1 July 2021. Whilst still to be finalised, this suggests that, as expected, EU citizens will need to provide evidence of their immigration status from 1 July 2021 onwards. It confirms that employers can carry out right to work checks using the online system, but the Code also sets out the revised list of documents that can be checked where the employee does not have the digital information to share. The finalised Code is expected very soon.

What are the recent changes to adjusted right to work checks?

Adjusted right to work checks are a temporary measure that have been in place since March 2020 and allow for checks to be performed remotely via video call with scanned versions of documents able to be accepted rather than the originals. Adjusted checks will now be permitted until 31 August 2021 (rather than 20 June 2021 as had previously been announced). It had been stated that retrospective checks would be required on those checks completed remotely in order to maintain the statutory excuse against liability for a civil penalty, but it has now been confirmed that no such retrospective checks will be required.

For further guidance and support with immigration requirements and compliance with right to work checks, please contact Eleanor Wilkinson.

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