Can a UK business continue to employ an EU Worker who has not applied for settled status?

There has been a massive amount of publicity about the need for EU nationals who were living and working in the UK before the end of free movement on the 31 December 2020 to apply for settled status. The deadline was the 30 June 2021. The articles and TV adverts helped prompt about six million EU citizens to make their settled status application. However, for the many UK businesses employing EU workers, there hasn’t been that much guidance on whether your company can continue to employ an EU worker who didn’t apply for settled status before the cut-off date of the 30 June 2021. In this article we look at the closure of the EU Settlement Scheme from a UK employer’s perspective.

UK Online and London Based Immigration and Employment Solicitors

If you have business immigration law and employment law questions about settled status for EU workers or hiring EU workers call the experts at London based OTS Solicitors on 0203 959 9123 or contact us online.

Is it too late for an employee to apply for settled status?

If your business employs EU workers who haven’t yet applied for settled status then although the official deadline to make the application was the 30 June 2021 there may be some leeway. Firstly, the government has said that it will notify EU nationals, who were in the UK before the 31 December 2020, that they need to apply for settled status as part of enforcement action.

Your workers can't rely on the government notifying all EU citizens who need to make an application for settled status . The government has also said that if an EU national has a reasonable excuse they can apply late for settled status. Being busy won't count as a reasonable excuse and the longer an EU worker leaves their settled status application, the harder it will be to justify the delay.

Right to work checks for EU workers

Every UK employer has to conduct right to work checks on all new employees and on current employees where the employer noted that the employee only has temporary leave to remain in the UK. For example, because the employee is sponsored on a skilled worker visa.

With EU workers, until the 30 June 2021, UK businesses could use an EU worker’s passports or national identity card as evidence of the employee’s right to work in the UK. That’s because the EU worker didn’t have to prove anything other than their nationality to show that they had a right to work in the UK.

Since the 30 June 2021, the right to work checks for EU nationals and non-EEA nationals are the same. An EU worker can no longer rely on nationality documents  to prove their right to work as if they entered the UK after the 31 December 2020, they have no right to apply for pre-settled status  or settled status under the EU Settlement Scheme. To have a right to work they would need a visa permitting them to work in the UK.

Right to work checks for EU nationals employed before the 30 June 2021

As an employer you are not required to carry out retrospective right to work checks on EEA nationals whom you employed before the deadline of the 30 June 2021. However, you will need to have conducted the right to work check before the 30 June 2021 and kept evidence of it to secure a continuous statutory excuse against a civil penalty if the EU worker is found to be working illegally.

Identifying an EU worker employed before the 30 June 2021 who no longer has the right to work in the UK as they haven’t applied for settled status 

Although an employer doesn’t have to carry out retrospective right to work checks on EU workers it employed prior to the 30 June 2021, some checks may take place by employers. For example, if you  conduct an internal review of your right to work checks. These types of checks may reveal that whilst the EU national had the right to work in the UK before the 30 June 2021 (as the EU citizen entered the UK before the 31 December 2020 and had the right to apply for settled status) the worker no longer has a right to work in the UK because the worker hasn’t applied for settled status by the deadline.

What does an employer do if they employed an EU national when the worker had the right to work but the worker has lost their right to work in the UK by failing to apply for settled status? Now that you as their employer is aware of the problem, you should not rely on the retrospective right to work check that you carried out when the EU worker was first employed as your knowledge means you no longer have a continuous statutory excuse against a civil penalty.

The government has set out guidance for employers caught in this situation. The government has introduced a transitional measure to provide additional flexibility for employers, presumably because the government doesn’t want to cause unnecessary problems for UK employers who may be struggling to recruit, without the added complexities of having to let go EU workers who forgot to apply for settled status by the 30 June 2021.

The government guidance sets out the process available to employers until the 31 December 2021, in circumstances where an employer has discovered that an EU worker didn’t apply for pre-settled status or settled status under the EU Settlement Scheme by the 30 June 2021.

The employer doesn’t need to terminate the EU worker’s employment if the transitional measure applies but:

• The EU worker must have been employed by the business, in the UK, prior to the end of the settled status deadline (30 June 2021).
• The employer must tell the EU worker that they must make an application for settled status within 28 days and provide confirmation to the employer that they have made their application. The worker will be issued with either an EUSS Certificate of Application or an EUSS email or letter confirming receipt of their settled status application and the employer should use that as evidence of confirmation.
• If the EU worker doesn’t apply for settled status within 28 days, the employer must take steps to end their employment in order to comply with right to work legislation.
• If the EU worker applies for settled status within the 28 days and the employer gets confirmation of the application the next step is for the employer to request a right to work check from the Home Office Employer Checking Service (ECS).
• If the Home Office can see that there is a pending settled status application, the ECS will give the employer a Positive Verification Notice (PVN). The PVN and a copy of the EU worker‘s evidence of their settled statusapplication must be kept by the employer together with the original right to work check documents that were conducted before the 30 June 2021. These documents provide an employer with a statutory excuse against a civil penalty for six months.
• Prior to the expiry of the six months and the PVN expiry, the employer must conduct a further check with the ECS in order to maintain the statutory excuse against a civil penalty. The EU worker will either have had their settled status application determined and have a right to work or, if the application is pending, an employer can be granted a further six-month PVN. The PVN will need to be repeated prior to expiry until the settled status application is determined.
• If the settled status application is eventually refused the employer won't be issued with a further PVN. The employer must end the EU worker’s employment. To ensure they have evidence of compliance with the governmentguidance, the employer should keep a copy of the pre-June 2021 right to work check and subsequent ECS responses. That way, the statutory excuse against liability for a civil penalty is maintained.

Right to work checks for EU nationals employed after the 30 June 2021

After the 30 June 2021, EU and EEA citizens are required to prove their right to work and immigration status in the UK in the same way as any other employee. Evidence of compliance for right to work checks is the same, whatever country the employee or prospective employee is from.

An EU national job seeker who doesn’t have pre-settled status, settled status or a work visa and who is looking to take up employment in the UK after the 30 June 2021 can't rely on the transitional provisions put in place for employees recruited before the settled status deadline.

Business immigration and right to work support

With all the Brexit and immigration changes it is hard for employers to keep up to date with the legislation, immigration rules and guidance. At OTS Solicitors we offer expert immigration law and employment law advice as well as bespoke training and sponsor licence management services.

UK Online and London Based Immigration and Employment Solicitors

For specialist legal advice on business immigration or employment law call OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.