What’s the deal with Brexit and the EU Settlement Scheme?

Immigration

SPEEDREAD: This article touches on the latest on Brexit, and the EU Settlement Scheme. The “Scheme” fully opened on 30 March 2019 and allows EEA/ Swiss citizens and family members to voluntarily apply for free, for a new form of UK immigration status to continue living and working in the UK post-Brexit.

At a recent employment/ immigration seminar in Surrey, our Vincent Chung asked the audience: “The EU Settlement Scheme – are many of you familiar with this?”. It was not surprising that the audience were not fully aware of the scheme – but who can blame them? Unless, they are personally affected by the EU Settlement Scheme, or follow UK immigration matters extremely closely, it will have been all too easy to have missed the Home Office’s initial campaign, especially with the continued uncertainty of Brexit. 

What is the EU Settlement Scheme (EUSS)?

On 30 March 2019, the EUSS was fully open to applications from the public – the day after Brexit was meant to have taken place. It is a post-Brexit immigration scheme designed to allow citizens of the EEA (short for the European Economic Area, comprising of the EU, Norway, Iceland, and Lichtenstein), and Switzerland, and certain non-EEA/ Swiss family members to continue living in the UK once Brexit takes place. In certain circumstances, non-EEA/ Swiss family members of British citizens may also apply.For the remainder of this article, we will use the term “EU citizens” to mean EEA and Swiss citizens.

Some employers might have come across their EU citizen workforce presenting a new UK immigration status under the EUSS between Autumn 2018 and March 2019, when the EUSS was in its testing phase. At present, applications for the EUSS are voluntary although there are deadlines which apply – please see below. It is worth noting that applications are free of charge.

A positive decision under the EUSS will result in the applicant receiving either settled status or pre-settled status, with the decision being issued electronically. A physical immigration document i.e. a biometric resident document will normally only be issued to non-EU family members who do not already have one. Employers will therefore be able to conduct online right to work checks.

Settled status

Settled status is “indefinite leave to remain” (ILR) and means that the holder is free from immigration time restrictions. In other words, the holder has permission to remain permanently in the UK and may subsequently apply for British citizenship should they want, and they meet the British nationality requirements. 

Pre-settled status

Pre-settled status is “leave to remain”, meaning the holder is still subject to immigration restrictions. It is essentially a 5-year visa which can allow the holder to apply for settled status/ ILR.

Holders of settled status or pre-settled status will be able to work for any UK employer without the need to be sponsored.

Are there any deadlines?

The deadline to make an application under the EUSS is currently

  • 31 December 2020 in a no-deal situation; or
  • 30 June 2021, if the Withdrawal Agreement is ratifiedand implemented (for individuals who are resident in the UK before/ on 31 December 2020)

There is of course the possibility that the position surrounding Brexit may change, and UK Parliament legislates for other dates to apply. UK employers and individuals should therefore be mindful of these dates, and if a EU citizen and/or their non-EU family members do not have status under the EUSS after the relevant deadline, then they risk being in the UK unlawfully, and their continued employment in the UK will risk employers being subject to a civil penalty. Where an application has been submitted before the relevant deadline, and is still outstanding with the Home Office, an applicant will usually still be in the UK lawfully and their lawful status will normally be confirmed by way of a ‘certificate of application’. An employer can use the Employer Checking Service to verify the certificate of application, and the applicant’s temporary right to work if the necessary paperwork is obtained.

Is there anything else to be aware of?

The requirements of the EUSS are found in the UK Immigration Rules, which is the same immigration system which regulates non-EU citizens e.g. those from Australia, USA and India who wish to come and live/ visit/ work in the UK. However, as Brexit did not take place on 29 March 2019 and the UK continue to be a member of the EU, the Immigration (European Economic Area) Regulations 2016 (which transposes EU free movement rules into domestic UK law) continue to be in force. The EUSS and EU free movement rules are therefore at present operating concurrently. As such, it is entirely possible for EU citizens and, in most instances, their non-EU family members to currently continue to rely on their automatic rights under EU free movement rules, without being required at present to apply for a form of status under the EUSS. Individuals who hold documents under the Immigration (European Economic Area) Regulations 2016 (or its predecessors) will need to apply to convert this to status under the EUSS before the relevant deadline, and they may wish to do so before their current document expires. 

Employers may therefore wish to consider how the current EU free movement rules and the EUSS affect them and their workforce. The EU Settlement Scheme: employer toolkit may be a good initial signpost and open up dialogue in the workplace about the EUSS. 

It is prudent to be aware of the current applicable deadlines and it is recommended that employers diarise to carry out fresh right to work checks where necessary, taking steps to minimise the risk of potential claims of discrimination. 

We can assist with all matters of business and personal immigration including: assisting with right to work checks/ procedures; immigration compliance; and applications under the immigration rules. If you have any questions, require immigration assistance, and/or would like to subscribe to the immigration newsletter please do not hesitate to contact Vincent Chung: vincent.chung@dixcartlegal.com.

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.