The realities of the 2016 Brexit vote are only just beginning to become clear for EEA and Swiss nationals and their employers. The deadline for EEA and Swiss nationals and their family members to submit their applications under the EU Settlement Scheme (the Scheme) is 30 June 2021 so they and their employers may have to act quickly.
Our experience has been that there is still a lack of understanding from business and personal clients as to what action they need to take.
The end of free movement under EU law on 31 December 2020 effectively means that EEA and Swiss nationals and their family members are divided into two categories:
- Those where the EEA or Swiss national entered the UK prior to 11pm on 31 December 2020 and may be eligible to apply under the Scheme to remain long-term in the UK
- Those where the EEA or Swiss national was not previously in the UK prior to 11pm on 31 December 2020 and who are not eligible to apply under the Scheme to remain in the UK. EEA and Swiss nationals arriving in the UK for the first time from 1 January 2021 onwards to live and work in the UK must qualify under one of the UK immigration routes to do so - e.g. sponsorship by a UK company as a Skilled Worker or spouse leave if they are married to a British national
EEA and Swiss nationals (and their family members) who came to the UK prior to 11pm on 31 December 2020
To continue to live and work in the UK, EEA and Swiss nationals who first arrived in the UK by 31 December 2020 must apply for pre-settled or settled status under the Scheme by 30 June 2021. Family members who are in the UK must also apply. Virtually all EEA and Swiss nationals and their family members must apply as only very limited categories are exempt from the need to apply - for example, Irish nationals or those with dual UK/EU nationality or those with indefinite leave to remain. This means that even if someone has lived in the UK for decades or is married to a British citizen they may need to apply under the Scheme. Children of EEA and Swiss nationals also need to apply.
Individuals who have been "continuously resident" in the UK for at least five years should be eligible for settled status and those who have been in the UK for less than five years should be granted pre-settled status.
If the EEA or Swiss national or their family member fails to apply by the deadline, on 1 July 2021 they are likely to be in the UK unlawfully with no right to work here.
Border checks from 1 July 2021
Until now there have been limited checks of EEA and Swiss nationals' immigration status upon arrival in the UK, although the figures show that even now an increasing number are now being refused entry at the border.
From 1 July 2021 border checks are expected to commence in earnest. Businesses will need to ensure that EEA and Swiss nationals do indeed qualify to come to the UK to avoid them being turned away at the border.
It is currently unclear whether immigration officials will be able to check someone's settled or pre-settled status under the Scheme. Those who do hold status under the Scheme should print out evidence of this and carry it with them in hand luggage as a precaution.
EEA and Swiss nationals entering as visitors may find themselves scrutinised on the purpose of their visit. It is important that visitors are aware that only limited activities are permitted as a business visitor (e.g. attending meetings, interviews, some intra-corporate activities such as training etc). Border control often carry out hand luggage and laptop/phone searches. Individuals could be refused entry where, for example, their LinkedIn profile or email signature indicates that they are carrying out a UK role (despite being based out of the UK).
Where visitors are intending to carry out activities which are not permitted under the visitor rules, this could result in adverse immigration consequences both for the individual and any UK employer that invited them to come to the UK.
What can you flag to UK businesses?
- Employers should encourage their European workforce to apply under the Scheme before 30 June. If they have not already done so, employers should email employees to remind them to apply before the deadline and to encourage employees to inform the business once they have been granted status under the Scheme. Any expiry dates for pre-settled status also need to be diarised so the employer can undertake a follow up check
- Check that businesses are aware that European nationals entering the UK as business visitors can only undertake very limited activities
- Ensure that businesses are aware that EEA and Swiss nationals can no longer simply enter the UK on the basis of a European passport to enter to live and work in the UK. If an EEA or Swiss national wishes to come to the UK to work or to undertake an internship they will need to obtain immigration permission first and will normally need to apply for permission to enter from their country of residence or the country of which they are a national. The immigration process can take weeks (and in some cases) months so employers and individuals should plan ahead and seek advice at an early stage. Immigration applications can also be very costly so employers should ensure they budget appropriately
- Multinational businesses with operations in the UK who may wish to transfer European nationals to work in the UK should check that the UK entity is registered with the Home Office as a sponsor and that they are complying with their obligations as a sponsor. In most cases UK businesses will need a sponsor licence in order to sponsor and employ European nationals who are currently outside of the UK. It can take three to four months to obtain a sponsor licence so businesses should look into applying for this in advance of needing to transfer employees to the UK
- There are however certain gaps in the immigration system which mean that in some cases it may not be possible for EEA or Swiss nationals to come to the UK. This particularly affects those who wish to undertake low skilled roles or those who are self-employed
- UK employers should ensure they have robust right to work checks in place for all employees. By carrying out a right to work check correctly employers can benefit from a statutory excuse against a civil penalty of up to £20,000 if it later transpires the person does not have the right to work in the UK. From 1 July 2021 employers will need to check that all individuals, including EEA and Swiss nationals, have the right to work in the UK. Although strictly this only applies to those starting work on or after 1 July 2021, employers may also consider carrying out retrospective checks on EEA and Swiss nationals who started work for them before 1 July 2021 to satisfy themselves that all of their workforce actually has the right to work in the UK. It's possible that during the period a number of EEA and Swiss nationals may have come to the UK for the first time and started working but may not actually have any lawful right to live and work in the UK. If this is the case, the employer and individual should take advice urgently
- EEA and Swiss nationals who rent accommodation in the UK will also need to show landlords evidence of their right to live in the UK so will need to have appropriate immigration permission in place
As we move towards the deadline for applications under the Scheme, individuals and employers may need to take quick action to preserve the ability of key European employees to remain in the UK. Beyond the deadline it is likely that European nationals could start to encounter issues at the border or with proving their right to work in the UK. UK employers should be alive to these issues to ensure their businesses aren't caught out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.