EU Settlement Scheme - After the Deadline

Andrew Willis

Andrew Willis

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05 Jul 2021

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The Deadline for the EU Settlement Scheme (EUSS) deadline has come and gone. However, applications can still be made after this deadline within a defined period.

There are many reasons a staff member may have missed the EUSS deadline. In some cases, this may be fine as they’ll have another form of leave in the UK. Where they don’t have this, you may identify them by:

  • Carrying out a retrospective check
  • Completing an internal audit
  • Word of mouth that your employee doesn’t have a lawful status in the UK

The individual may tell you that they have missed the deadline through no fault of their own. In these cases, it may be disproportionate for you to dismiss them. Particularly when there is a grace period which will give them further opportunity to apply.

The EU Settlement Scheme

Managing staff who don’t have settled status

Even though the initial deadline was 30th June, you still have time to help an employee gain settled status, at least until 31th December 2021. This applies only to those you employed prior to 30th June 2021. We’ll cover future recruitment later in this article.

The application process

  1. Advise the individual they must make an application to the EUSS within 28 days and provide you with a Certificate of Application (CoA). If they fail to do this, you must take steps to cease their employment in line with right to work legislation.
  2. Once you have been provided with a CoA, you must contact the Home Office Employer Checking Service (ECS). Confirm that the individual has applied. When contacting the ECS, you may be asked to provide evidence of the start date of their employment. You can provide this in the form of the initial right to work check.
  3. The ECS will give you a Positive Verification Notice (PVN). Retaining the PVN and a copy of the individual’s CoA will provide you with a statutory excuse against a civil penalty for six months. This allows sufficient time for the application to be concluded. It also lets the individual to maintain their employment with you during that time.
  4. Before the PVN expires, you must do a follow-up check with the ECS. This will maintain your statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, they can prove their right to work. They must do this using the Home Office right to work online service.
  5. If the follow-up check confirms that the application is pending, you will be given a further PVN. This will last for six months. You would then repeat step 4 until the application has been determined. If the follow-up check confirms the application has been finally determined and refused, you won’t be issued with a PVN. In this circumstance, you must take steps to cease the individual's employment.
  6. You should record and maintain accurate records of checks and actions taken in regard to this guidance. Do this in the same way in which you retain evidence to demonstrate a statutory excuse.

 

From now on, EEA citizens, or their family members, without working status, will receive a 28-day notice before action is taken. This gives them the opportunity to make a late application to the scheme. In doing this, they must cite their reason for missing the initial deadline.

Recruiting EU nationals from 1 July 2021

Right to work

From 1 July 2021, the majority of EEA citizens will prove their right to work using the Home Office online right to work service. Those who have made a successful application to the EUSS will have been granted their immigration status digitally. They can only prove their right to work using the Home Office online service ‘prove your right to work to an employer.’ This is available on GOV.UK:

https://www.gov.uk/prove-right-to-work.

So what specifically do individuals need to provide you with to prove their right to work?

Candidates will be need to give you a share code and their date of birth. This will allow you to check their immigration status via the online service available on GOV.UK:

https://www.gov.uk/view-right-to-work

If an EEA citizen has been granted ‘Settled Status’ by the Home Office, they will have a continuous right to work. This works in the same way as someone with Indefinite Leave to Enter / Remain status.

If an EEA citizen has been granted ‘Pre-Settled Status’ by the Home Office, they will have a time-limited right to work. This means you must carry out a follow-up check. The Home Office online service will advise when a follow-up check must be carried out.

Recruitment

Moving forward, there are a couple of things you need to take into account when hiring EEA citizens.

  1. Have they applied to the EUSS?
  2. Do they have alternative immigration status in the UK?

If the answer to both of those questions is “no” then they shouldn’t be employed.

Variations in settled status

As of 1 July 2021, there will be some groups of EEA citizens who will not have status under the EUSS. They will evidence their right to work using specified documents if they cannot use the Home Office online system. These are:

  • Frontier Worker Permits
  • Service Provider of Switzerland visas
  • Outstanding applications to UK EUSS
  • Outstanding applications to Crown Dependency EUSS
  • EEA citizens with Indefinite Leave to Enter/Remain
  • Points-Based System visas.

Expert support

If you need support with EEA employees, or any other employment law issue, speak to one of expert advisers today on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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