European Union: UK Employment Law Round-Up - April 2019

The EU Settlement Scheme and Non-EU immigration - the latest At the time of writing, the government still has much work to do before the UK exits the European Union. However, we do have a degree of clarity about the status of EU/EEA nationals and their families in the UK, regardless of when the UK leaves the EU, and whether a deal is agreed or not. This article looks at what we do know now and what action EU/EEA nationals can take now the Settlement Scheme has gone live.

EU, EEA or Swiss citizens and their family members can now apply, at no cost, to the EU Settlement Scheme to continue living in the UK after free movement ends. If the application is successful, either settled or pre-settled status will be granted. The proposed deadline for applying is currently 30 June 2021 in a deal scenario.

If the UK leaves the EU without a deal, the current status is that applicants will need to have been living in the UK on or before the date the UK leaves the EU (Brexit day), and apply by 31 December 2020. Brexit day is now set for 31 October 2019 at the latest, but the aim is to leave the EU before the need to hold European Parliament elections on 23 May 2019.

The application process

There is a two-step, technology-enabled, application process which is accessible to applicants in the UK, as well as applicants based abroad:

Step 1 – Identity: The Home Office will need to verify the applicant's identity. It will do this by a valid passport or national identity card. The applicant can scan the identity documents using the EU Exit ID Document Check app, or by attending an ID document scanning location set up by the Home Office. This symbol on a document shows if it can be read by the app:

If using the app, this is currently only available on Android devices, but will be available on Apple devices later this year. The app will check the genuineness of the document and that it belongs to the applicant. Alternatively, if the documents are not biometric and cannot be scanned, an applicant can post their passport or national identity card to the Home Office. A digital photograph will also be required to ensure it matches the photo on the identity documents.

Step 2 – Application to confirm residence and character: The applicant must establish their residence in the UK by providing their National Insurance number. The NI number will enable the Home Office to make an automated check of UK tax and benefits records. If an applicant cannot provide a National Insurance number, then the Home Office will accept other evidence and recommends that applicants use documentation covering long periods of time. Examples include:

  • an annual bank statement or account summary showing at least six months of payments received or spending in the UK;
  • an employer's letter confirming employment;
  • a council tax bill;
  • a letter or certificate from a school, college or university showing enrolment dates;
  • an invoice for school, college or university fees;
  • a residential mortgage statement or rental agreement, and evidence of payment;
  • a letter from a registered care home.

An applicant can upload a maximum of 10 documents.

The applicant must complete a declaration of any criminal convictions.

Decision

It will not be for the applicant to choose whether they want to apply for settled status or pre-settled status. Which status is granted will depend on how long the applicant has been living in the UK when they apply. An online decision should be made within a couple  of weeks. No physical document is produced.

Settled status

An applicant will usually be granted settled status  if they have lived in the UK for a continuous five-year period (known as "continuous residence").

Five years' continuous residence means that an applicant has lived in the UK, the Channel Islands or the Isle of Man for at least six months in any 12-month period, over a total period of five years  in a row. There are some exceptions, e.g. an absence because of childbirth, illness, study or military training.

If an individual is granted settled status, there will  be no restrictions on their length of stay in the UK.  An application for British citizenship may also be made in due course. A period of five years spent outside the UK may result in an individual losing settled status.

Pre-settled status

If an applicant does not have five years' continuous residence when they apply, they will usually get pre-settled status. They must have started living in the UK by 31 December 2020 (or by Brexit day if the UK leaves the EU without a deal). After five years' continuous residence an individual can make an application to change to settled status.

A person can stay in the UK for five years after  getting pre-settled status. A period of two years spent outside the UK may result in pre-settled  status being lost.

A person with settled status or pre-settled status  will be able to work in the UK and travel in and out  of the UK.

Family members

Family members of EU citizens who are either in the UK already or come to the UK before 31 December 2020 can apply to the Settlement Scheme. The family member can be from anywhere in the world. A family member includes spouses, civil partners, unmarried partners, dependent children and grandchildren, and dependent parents and grandparents. Children born or adopted after 31 December 2020 (if there is not  a deal, this date will be 29 March 2022) will also have their rights protected.

To be able to apply, the family member must have  a UK residence card with a biometric chip. If the family member does not have this they will be asked to make an appointment at a UK Visa and Citizenship Application Services (UKVCAS) service point.  At the appointment they will be required to provide biometric information (i.e. fingerprints and a photo) with their application.

Comment

Some employers are helping their EU workforce with applications under the Settlement Scheme. We are working with clients to design programmes that suit their specific requirements, including presentations to their staff informing them of details on the application process and an open Q&A forum followed by individual clinics. Please do let us know  if this would also be of help to you.

Otherwise, the new Settlement Scheme imposes few immediate changes for employers of EU nationals. While, as above, an employer may wish to communicate and assist their staff regarding the process, it is the responsibility of the individual to make an application to the EU Settlement Scheme. An employer is not required to check that an employee has applied.

The current framework for completing a "right to work" check for an EU, EEA or Swiss national is not expected to change until 2021 (with the exception being that once pre-settled or settled status is in place, EU citizens will be able to evidence their right to work using the online right to work service, if they choose to do so). Employers will not be required to undertake retrospective checks on existing EU employees, even though the basis on which they are able to work in the UK will change.

Non-EU immigration changes

Despite what some people might call the chaos of Brexit, the Home Office has still found time to overhaul other aspects of the Immigration Rules.  The Tier 1 route came under most scrutiny.

The Tier 1 (Entrepreneur) route closed on 29 March 2019 and the Tier 1 (Graduate Entrepreneur) route will close from 5 July 2019. New "Innovator" and "Startup" routes are to be rolled out. This looks promising for UK business since the required investment under the Innovator route is £50,000 (being much lower than the £200,000 under the old Entrepreneur route). However, it has been criticised as focusing on tech businesses to the exclusion of others. Under the Start-up route, an applicant may be granted leave initially for two years, there is no minimum investment requirement and the applicant need not be a recent graduate. These three traits provide an improvement on the Graduate Entrepreneur route.

A designated endorsing body will access the credibility of a new Innovate or Start-up business. This mirrors the Exceptional Talent visa route and seems a sensible move so that knowledgeable experts can review business plans rather than Home Office caseworkers. However, the downside is that, at present, it appears that none of the endorsing bodies appear ready to endorse applications, with one major endorsing body stating that they may not be ready until September 2019. Highly talented international entrepreneurs are therefore currently restricted from applying to come to the UK to set up a business.

The Tier 1 (Investor) route has a new requirement that funds need to have been held for two years before the application, otherwise the Home Office requires the applicant to demonstrate the exact source of the funds. Further, in a move designed to increase investment in UK trading companies, investors can  no longer invest funds in UK government bonds.

Brexit and a focus on assisting those with genuine aspirations to make the UK their home and bring a benefit to the UK remain a priority for the government. Both of these issues are likely to rumble on for years to come and we will continue to bring you updates as they develop in our Round-up and/or on ukemploymenthub.com.

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Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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