Preparing for Brexit – the EU Settlement Scheme

Many employers are concerned about Brexit and the continuing uncertainty surrounding the leaving date of 31st October and whether a deal will be agreed or not or whether there will be a further delay.

One area of concern is the status of EU/EEA citizens working in the UK. When the UK’s immigration system is changed in 2021 European citizens will need permission to work in the UK and employers need to understand these changes and how current and future European citizens will be affected.

The EU Settlement scheme (EUSS) is a process to register EU,EEA and Swiss nationals living in the UK and to assign them either settled or pre settled status. The scheme opened for applications on 29th March 2019 and already over 1.3 million people have applied and the government report that this is around 38% of the estimated 3.35 million people with EU, EEA or Swiss nationality living in the UK. Citizens from the Republic of Ireland do not need to apply, but may do so if they wish, as they have a general right to live and work in the UK which is separate to their rights as EU citizens.

Successful applications to the scheme will result in either settled or pre settled status. Settled status is likely when an individual has lived in the UK for a continuous 5 year period (some exceptions apply) or where there is less than 5 years continuous residence an individual will usually get pre settled status where they started living in the UK by 31st December 2020 or the date the UK leaves the EU where there is no deal. An application to change this can then be made once the 5 year period has been reached

Many employers are talking to their employees about the EU settlement scheme recognising the valuable contribution they make to their businesses. However it is the responsibility of the individual to make an application to the scheme and they have no requirement to inform the employer that they have applied or of the outcome of their application. Employers are consequently not required to check that an employee has applied.

Employers have a duty not to discriminate against EU/EEA citizens in light of the decision to leave the EU both with current and prospective employees. Employers cannot make an offer of employment or continued employment based on an individuals having applied to the EUSS.

Current Right to Work checks will apply until the end of 2020 and there will be no change to the rights and status of EU citizens until 30th June 2021. In the event of no deal this date will be 31st December 2020. EU citizens can also evidence their Right to Work status using the online service if they choose to, but are under no obligation to do so.

The government states that employers will not be required to undertake retrospective checks on existing EU citizens when the the UK transitions to the future skilled based immigration system.

Employers should also be careful not to be seen as providing immigration advice but can signpost employees to the information provided by the government.

EU settlement scheme guidance can be found at gov.uk/eu-settled-status.