EU Settlement Scheme – deadline approaching

Whilst the UK formally departed the EU on 31 January 2020, we are now fast approaching the end of the transition period regarding EEA/Swiss nationals (and their dependent family members) registration for the right to continue residing and working in the UK post-Brexit.

The deadline for registration under the EU Settlement scheme is 30 June 2021 and it is now therefore timely to engage with your workforce to remind them about the requirement to register under the EU Settlement scheme.

EEA/Swiss nationals and their dependent family members that were resident in the UK prior to 31 December 2020 are permitted to continue living and working in the UK, however to protect that right they are required to go through the EU Settlement Status registration scheme and to secure either Pre-Settled or Settled Status. Individuals that have been resident in the UK for five year or more continuously will be given Settled Status and those that have lived in the UK for less than five years will be given Pre-Settled status.

Some additional key considerations include:

1. Failure to register

If individuals fail to register before 30 June 2021 there is a risk that they will lose the right to continue living and working in the UK. Whilst details are still to be announced about any changes in Border Control, it is expected that Border Force will commence verification of EU nationals’ Settlement Status and their associated right to enter the UK for reasons other than entering as a visitor (including work or study) from as early as 1 July 2021. As COVID travel restrictions start to lift and travel begins to resume later in the year, this could cause an increase in friction at the borders if individuals do not have the correct status and this could have adverse consequences for your business operations and continuity.

Whilst a late application under the EU Settlement Scheme may be possible, this will become at the discretion of the Home Office and reasons and evidence will need to be submitted as to why an application was not made in time. Only those with ‘reasonable grounds’ will have their applications accepted for consideration.

The Home Office published guidance on 6 April 2021 as to what constitutes good reason for making a late application. Whilst the Home Office instructs its caseworkers to ‘take a flexible and pragmatic approach’ and to ‘give applicants the benefit of any doubt’ when considering an application, the guidance nevertheless appears to set the standard high – with examples of ‘reasonable grounds’ including:

• having been a child under 18 whose parent/guardian failed to register on their behalf in time
• those without full physical or mental capacity or those with care/support needs
• those subject to serious medical condition/treatment
• victims of modern slavery
• victims of abusive or controlling relationships.

As such, those that are simply disorganised and failed to meet the deadline may not be considered.

2. Prior EU residence status documents will not be valid after 30 June 2021

It is important that employees are aware that previous immigration status documents, issued under EU law will no longer be valid for travel or entry to the UK. Those holding EEA family permits, residence cards, permanent residence cards or derivative rights residence cards for the UK will cease to be valid after 30 June 2021 and therefore it is essential that these individuals have also made an application under the EU Settlement scheme for either pre-settled or settled status by 30 June. The only exemption from needing to make the application to switch to a status under the EU Settlement scheme is if an individual has already applied for and been granted British citizenship and the individual has attended their citizenship ceremony by 30 June.

3. Communicate with all impacted employees

Many businesses are trying to navigate supporting their employees through this period and have been pro-actively engaging/sending communications to employees that they have recorded as holding EU nationality. It is however, worthwhile reviewing your employee records and remembering that non-EU nationals may be resident in the UK on the basis of their relationship with an EU national and resident as the dependent of an EU national family member – don’t forget to ensure all impacted employees receive the relevant information.

These articles are from the April 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Sacha Wooldridge or another member of Birketts’ Immigration Team.