As the UK continues to adapt to life post-Brexit, the next important date from an immigration standpoint is 30 June 2021.
European Economic Area (EEA) and Swiss nationals who were resident in the UK on or before 31 December 2020 have until this date to submit their initial applications under the EU Settlement Scheme. If they do not, they will no longer have permission to remain in the UK and will have to make arrangements to leave.
In addition, where a UK employer hires an EEA / Swiss national after 30 June 2021, they will be required to undertake a full right to work check on the individual. Up until this date, employers are able to rely solely on seeing, and taking the appropriate copy of, an EEA and Swiss national's passport or national identity card to meet the right to work check requirements. This is the case even though, since 1 January 2021, EEA / Swiss nationals have required immigration permission to live and work and providing only their passport / national identity card is not sufficient to evidence that they hold the necessary immigration permission.
We therefore set out below further details of both these changes and the actions that EEA / Swiss citizens and their employers must take.
EU Settlement Scheme: deadline for applications
30 June 2021 is the last date an initial application may be submitted under the EU Settlement Scheme ("EUSS") for an EEA / Swiss national to remain in the UK. The EUSS is open to EEA / Swiss nationals who are able to provide acceptable evidence that they were physically present in the UK prior to 11pm on 31 December 2020.
Under the EUSS, an EEA / Swiss national who has been in the UK for five continuous years may be granted "settled status". This is indefinite leave to remain (also known as permanent residence) and entitles an individual to remain in the UK indefinitely, with unlimited permission to live, work and study in the UK. If the individual meets the requirements of the EUSS but does not qualify for settled status, they will be granted "pre-settled status". This permits them to remain in the UK for up to five years, during which they have unlimited permission to live, work and study in the UK. Once someone with pre-settled status has completed five years in the UK, they may qualify for settled status.
EUSS applications can be submitted using the UK Government's "EU Exit: ID document check" app while the individual is in the UK or overseas. Provided the application is submitted before 30 June 2021, the EEA / Swiss national will continue to have the ability to live, work and study in the UK until the application is approved.
Changes to the Right to Work Checks
Employers are required to check the immigration status of employees to ensure they have the right work ("RTW") in the UK for that employer. Employers must carry out the RTW check on:
- all new employees before they start work; and,
- all existing employees who have a time limited permission to remain in the UK before this permission expires.
Failure to do so may result in civil and / or criminal penalties being levied against the employer if it is later discovered that the employee did not possess the requisite immigration permission allowing them to work.
At present, employers who are undertaking RTW checks on EEA / Swiss nationals, are able to rely solely on seeing, and taking the appropriate copy of, their passport or national identity card.
From 1 July 2021, EEA / Swiss nationals will also have to provide evidence of their immigration status in order for an employer to satisfy the RTW requirements.
Since EEA / Swiss nationals are not issued with hard copy documents which meet the RTW requirements, employers will have to either use the UK Government's online RTW checking service. This involves the EEA / Swiss national providing the employer with a share code, which they can obtain using a UK Home Office portal, together with their date of birth. Once the employer receives this information, they can enter it onto a separate on-line portal where they will be able to view a photograph of the individual together with confirmation that they have the RTW in the UK. The employer should review this photograph in the presence of the employee, or via a video call, so that they can verify the employee's identity.
The employer must then print or save a copy, either as a PDF or HTML file, of the on-line 'profile' page on the employer portal confirming the individual's RTW. They must then store this securely, (electronically or in hardcopy) for the duration of the EEA / Swiss national's employment and for two years afterwards.
If the EEA / Swiss national has pre-settled status, or other time limited immigration permission, the employer must also diarise to check with the employee that, before their permission expires, they have made an application for settled status / indefinite leave to remain, or an application to extend their stay under another immigration category.
If the EEA / Swiss national is unable to provide a share code, or any other documents which satisfy the RTW requirements, the employer will need to use the Home Office's on-line Employer Checking Service. If the individual has the legal right to work in the UK because they have, for example, made a valid application under the EUSS, the UK Home Office will send the employer a "Positive Verification Notice". This will be valid for six months only so employers should diarise to follow up with the employee before the six months is up to see whether they have obtained the appropriate immigration permission.
Retrospective right to work checks
It is important to note that employers are not required to obtain confirmation that their current EEA / Swiss employees have applied, or obtained permission, under the EUSS, or another UK immigration category which enables them to undertake their current role, and this continues to be the case after 30 June. In other words, provided the employer has undertaken a RTW check which involved them seeing, and taking the appropriate copy of, the EEA / Swiss national's original passport or national identity card (or a copy if the RTW check was done on the basis of the Covid-19 concession), they are not required to redo the check.
If it subsequently turns out that the EEA / Swiss national did not apply under the EUSS, and does not have any other appropriate UK immigration permission, the employer will have a defence to liability under the law in relation to the prevention of illegal working.
If an employer is concerned about maintaining the stability of its workforce, it can undertake retrospective checks on EEA / Swiss nationals who were employed on or before 30 June 2021. However, it must ensure that this is done in a non-discriminatory manner.
The 30 June 2021 marks the end of the ability of EEA / Swiss citizens to live, work and study in the UK without holding UK immigration permission. It is therefore vital that EEA / Swiss citizens who wish to continue to have this ability apply under the EUSS, or under another relevant UK immigration category, before this date.
Although employers are not required to check that their current EEA / Swiss national employees have the appropriate immigration permission to work in the UK in order to continue to satisfy the RTW requirements, they will need to have policies and processes in place to undertake full RTW checks on EEA / Swiss nationals from 1 July 2021.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.