What needs to happen regarding EU workers before and after Brexit on 1 January?

As any employers trading within Europe or employing EU workers are probably already well aware, we are fast approaching the date of the UK’s departure from the EU – New Year’s Day, 2021.

With this in mind, in order to hopefully save you some time and worry in relation to your obligations regarding EU workers, we have done some of the research for you and set out some guidance below.

The good news is that, particularly for EU workers who are already on your payroll, the process is fairly simple and straightforward – for you and for them. However, we recommend that you encourage your staff to take action now.

What businesses need to do in run-up to 1 January

We are now only a little over a month away from the deadline of 31st December 2020 by which EU workers need to be in employment in the UK in order to have the right to remain here and working, after 30th June 2021.

During this transition period, current EU law continues to apply to the UK. This means that, until 31st December 2020, EU citizens are allowed to live and work in the UK in exactly the same way as before.

It also means that employers can continue to rely on a check of an EU citizen’s passport or national ID card in the same way as usual.

What businesses need to do after 1 January

Once we move into 2021, there will be two systems in operation: one for current EU workers and one for new EU workers. A new immigration system will apply to people arriving in the UK from 1st January 2021 onwards and all EU citizens moving to the UK to work on or after this date will need to get a visa in advance.

It is important that anyone who deals with recruitment and employment checks for new starters understands the change and the new requirements once they return from the Christmas break. If you use a recruitment agent, the responsibility to carry out appropriate right to work checks will remain with you and so we recommend that you have someone in-house who is carrying out these checks and keeping records for you.

The situation for current EU workers

Given the timescales, it is important that we start looking at how to adapt to this change and that you start talking to any EU workers on your payroll now about what they need to do, so that you and they have plenty of time.

The rights and status of EU, EEA (the EU countries and also Iceland, Liechtenstein and Norway) and Swiss citizens living and working in the UK will remain the same until 30th June 2021, but we are urging employers to encourage and support their staff not to leave the application process until the last minute.

If you would like any support with planning and/or delivering your communications to staff, please just let us know.

Although, the Home Office guidance states that you cannot require an employee to show you their status under the EU Settlement Scheme until after 30 June 2021, we should still be advising and supporting our EU workers with the process in order to avoid any potential issues further down the line.

What will happen regarding new EU workers?

For now, the Home Office’s guidance states that during the grace period from 1st January 2021 to 30th June 2021, employers can continue to rely on a check of an EU citizen’s passport or national ID card in the same way as usual, and so you should not need to check your normal procedures.

Such a check must always be carried out before the employment commences and if carried out properly will give the employer a statutory excuse against potential illegal employment for the duration of the employment. 

In addition, we would advise taking the following steps as a precaution if you know that you’re taking on a new EU worker:

  • Check when they first arrived in the UK, this information may be included in the information in their job application or you may need to ask them for it.
  • If they arrived on/ before 31st December 2020 then they are eligible to apply for settled status and you should encourage and support them to apply (as for your current EU workers).
  • If they arrived on/ after 1st January 2021, then they should have a visa to continue working after 30th June 2021. The Home Office guidance indicates that you shouldn’t ask them for their visa during this interim period, but you may wish to advise them (and diarise) that you will need to do follow up checks nearer to 1st July 2021 to verify their visa.

It is possible that this guidance might change as we get closer to 30th June 2021 and we will update you again if it does.

Guidance for checking settled status

The guidance on what checks an employer will need to make regarding settled status after 30th June 2021 is vague and contradictory at the moment and we hope that new Home Office guidance will clarify the position in this area over the next few months.

What is the difference between settled status and pre-settled status?

In summary, the key points you need to note as an employer, as this stage are:

  • Your EU employees need to apply under the EU Settlement Scheme to remain able to live and work in the UK beyond 30th June 2021. If they are already living and working here, they will in all likelihood be given either settled or pre-settled status.
  • They will not have the opportunity to choose which status they get; this will depend on how long they have already been living in the UK at the point they apply. Their rights under the scheme will then depend on which status they get. 
  • They will usually get settled status if they started living in the UK by 31 December 2020. 
  • They will usually get pre-settled status if they started living in the UK by 31 December 2020, but they have not yet lived in the UK continuously for a 5-year period.
  • If they are granted pre-settled status they need not worry, this usually means that they did not have 5 years’ continuous residence required when they first applied. So long as they started living in the UK by 31st December 2020, they can stay in the UK for a further 5 years from the date they get pre-settled status. They can continue to live and work in the UK with this status and they can apply later, once they have passed the 5-year point, and change this to settled status. They must however do this before their pre-settled status expires.
  • For those individuals who will reach the 5 years’ continuous residence milestone at some point before the 1st June 2021, we would recommend that they wait to apply until they reach the 5 years’ continuous residence, this will save them having to go through the process again.
  • Under either settled or pre-settled status your employees will be able to:
  • Work in the UK
  • Use the NHS for free, even if they can’t at the moment
  • Enrol in education or continue studying
  • Access public funds such as benefits and pensions, if they are eligible for them
  • Travel in and out of the UK.

As always, if we can be of any help, please do not hesitate to contact us.