Gaining settled standing for European staff – what employers ought to do

On top of the Covid-19 headache, there are growing concerns that many European nationals are unaware of what they need to do to continue working in the UK, such as applying for settled status.

Research from The Joint Council for the Welfare of Immigrants earlier this month warned that one in seven EU care employees was at risk of losing their immigration status as a result of changes to regulations. This indicates a worrying lack of awareness among EU employees about the need to act now to secure working status.

If your European employees fail to secure this settled status (or pre-settled status) before the deadline they run the risk of losing their right to remain in the UK. That could be a massive blow to your business.

It is essential that, as an employer, you know where you stand in relation to the new immigration rules and that you support your employees to do what they need to do.

What do European employees need to know about securing the right status?

There are mounting concerns that many EU, EEA and Swiss nationals do not know they need to apply for settled status, with some believing that as they hold a permanent residence card they need not apply. That is not correct.

If you have members of your workforce who are EU, EEA or Swiss citizens and do not already have ‘indefinite leave to remain’ and they want to continue living and working in the UK after June 30 2021 they need to apply to the EU Settlement Scheme.

If their application is approved they’ll get either settled or pre-settled status (more on this here). If they fail to secure settled status (or pre-settled status) they run the risk of losing their right to remain in the UK beyond the 30 June 2021 deadline.

While it is an individual’s responsibility to apply to the EU Settlement Scheme, as an employer you should seek to support them as much as possible – and right now, awareness is key:

When can they apply?

Now. The deadline for applying is June 20 2021 and they must have started living in the UK by 31 December 2020.

How much does it cost?

It’s free.

Who needs to apply?

Except in a few cases, your employees will need to apply if:

  • They’re an EU, EEA or Swiss citizen
  • They’re not an EU, EEA or Swiss citizen, but their family member is (or is an eligible person of Northern Ireland)

Who does not need to apply?

Your EU, EEA or Swiss citizen employees do not need to apply if they have:

  • Indefinite leave to enter the UK
  • Indefinite leave to remain in the UK (usually shown as a stamp in their passport or a letter from the home office)
  • Irish citizenship (including British and Irish ‘dual citizenship’)

How do they apply?

Applications are online. They can apply using any device, for example, a laptop, Android device or iPhone.

As part of the application process they will need proof of:

  • Their identity
  • Their residence in the UK

What do I as an employer need to do about the new immigration rules?

Dos

  • Raise awareness of the EU Settlement Scheme amongst your workforce (fact sheets and posters are available from gov.uk) and encourage them to apply if they haven’t done so already
  • Audit your workforce, what is your workforce’s nationality (and those of your supply chain) and ensure Right to Work Documentation is in place for all. The current right to work checks (e.g. passport and/or national identity card) will continue to apply until the June 30 2021.
  • Continue to employ skilled workers from outside of the UK. However, you must have applied for a Sponsor Licence to do this
  • Continue to employ Irish nationals in any role (skilled or unskilled) without the need for further visas or paperwork
  • Ask all new recruits after January 1 2021 about their immigration status or the date of their arrival in the UK, being extra careful of course not to discriminate in any way for example on racial, ethnic or nationality grounds
  • Develop a process for determining EU worker’s status post June 30 2021
  • Comply with the new immigration rules if you are recruiting from outside of the UK (including EU citizens) from January 1 2021

Don’ts

  • Demand to see proof of their application to the Settlement Scheme. There is no requirement for an employee to inform you as their employer that they have applied to the settlement scheme or the outcome of their application. Likewise, employers are not required to check that an employee has applied.

There is however nothing preventing employers from raising awareness of the settlement                              application process and encouraging them to apply. You cannot ask your workforce to prove they              have applied

  • Discriminate against EU citizens. This is mentioned above but in addition, the current Home Office guidance states: “You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after June 30 2021.”

 The UK’s points-based immigration system – what you need to know

From January 1 2021 free movement ended and the UK introduced a points-based immigration system. This treats EU and non-EU citizens equally. Anyone you want to hire from outside the UK, excluding Irish citizens, will need to apply for permission in advance (excluding EU citizens who were in the UK on December 31 2020).

This is what the government says about its new approach and its attitude towards low-skilled and temporary work:

“The UK’s points-based system is to cater for the most highly skilled workers, skilled workers, students and a range of other specialist work routes including routes for global leaders and innovators.

We will not introduce a general low-skilled or temporary work route. We need to shift the focus of our economy away from a reliance on cheap labour from Europe and instead concentrate on investment in technology and automation.

Initiatives are also being brought forward for scientists, graduates, NHS workers and those in the agricultural sector, which will provide businesses with additional flexibility in the shorter term.”

Under a points-based immigration system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points. A total of 70 points is needed to be able to apply to work in the UK.

Have you considered your Brits working ‘remotely’ abroad?

With Covid-19 encouraging some employees to make their escape to sunnier shores to ‘work from abroad’ or even live abroad permanently, yet more complications can arise.

Most employers haven’t twigged that allowing employees to ‘emigrate’ to Spain, Cyprus or similarly sunny working spots, even temporarily, is not straightforward. It’s complicated in part because this issue spans UK and local employment legislation, corporate law relating to the country your employee is working in, along with personal taxation, with the potential for an employee to find themselves taxed twice.

The risks and complications will be different according to the specific country the employee wants to emigrate to but employers need to be very careful about creating a legal minefield for themselves due to not understanding the potential complexities.

Immigration and overseas working has always been a complicated area of employment law and is not easy to navigate at the simplest of times. However, there is advice, training and tools available to help you navigate these new seas.

The most important message is to educate yourself as an employer, know when there needs to be an alarm bell ringing in your head and act now before you risk losing your valued staff.

Helen Jamieson is the founder and MD of Jaluch HR & Training.

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