Are employers ready for changes to European settled status regime?

Siobhan Owers, Fragomen LLP

Europeans living in the UK face a fundamental milestone on 30 June 2021. People from the European Union (EU), the EEA and Switzerland who arrived in the UK before 11pm on 31 December 2020 will need to apply for status with the Home Office or face becoming illegal immigrants more or less overnight.

It will, says Siobhan Owers, have major implications for employers.

European nationals who have lived in the UK for more than five years will need to have applied to the Home Office for settled status and those living in the UK for less than five years need to apply for pre-settled status by 30 June 2021, confirming their residence and right to access services.

Over 5.4m people have applied for settled status in the past two years, yet there are many Europeans that have yet to apply.

And whilst the onus is on individuals to act, employers that rely on European workers are urged to help staff with outstanding applications.

The rules do not expect employers to know if an existing employee has applied or been granted status under the scheme. In fact, there is no legal basis to ask incumbent employees about their status and doing so could cause problems, with employers facing potential discrimination claims if they insist employees to tell them their status.

But the truth is that this really matters. Those who don’t apply in time could have their lives turned upside down. Failure to apply on time could potentially create some of the following unwanted scenarios for individuals, such as losing the right to start a new job, difficulty renting a new flat or obtaining a mortgage, problems accessing non-emergency health care, driving a car or even holding a bank account. Many fundamentals of day-to-day life will be taken away overnight.

The word ‘new’ is important in that list of problems. Europeans taking a new job or renting a new flat won’t be able to confirm their right to rent and work. Employers do not need to check that existing employees and tenants have applied. There is in fact an open question whether landlords could also run into legal issues and be potentially challenged in court if they insist on making checks. Nevertheless, employers will want to help their people, given the potential for severely disrupted lives.

But what can they do?

The answer is simple and straightforward – employers need to talk to their staff. If you know which staff are European nationals, talk to them directly, but equally it will do no harm to tell everyone. Friends and family need to understand these changes too. The more awareness, the better.

The message can be relatively simple and should touch on the following:

• You are eligible for settled or pre-settled status if you or your family members are an EU, EEA or Swiss national and were in the UK before 11pm on 31 December 2020.
• The application is very simple taking around 20 minutes via an intuitive Home Office app or website. In most cases, the Home Office can track residency against tax or benefits records.
• The application can take up to four weeks to be processed, after which you will be awarded a digital status rather than a stamp in a passport. You need to apply by 30 June 2021.
• Do not lose track of that digital status as it will be needed when looking for work or renting a property. The digital status is in the form of an email and there is also an online portal that can be used to prove status to employers and landlords. It may be appropriate for an employer to monitor that status in the same way visas of overseas staff will be monitored.

The Home Office has already granted millions of applications and we would hope very few people will have problems in making applications. But given the numbers, a few could still be tens of thousands of people. Employers will need a plan for that – what if a prospective hire or established colleague fails to apply? How will you help them? Would you be willing to absorb the cost of then having to apply for a work visa for them?

Late applications
The government says it will treat late applications fairly. Whilst the sentiment is admirable, it is also meaningless until we see where they will grant applications and where they will refuse them. We also need to see how long it will take. I would be surprised if many people can wait even a few weeks for a decision without a job, a home or important medical treatment.

Employers need to be talking about this now as a way of further highlighting these issues to the government. There has to be flexibility to start a job and more while you wait for a decision. There also needs to be a commitment to dealing with the applications.

Even that is not enough, if there is still a risk people could be refused. We hope the Home Office will grant all qualifying applications, whatever the reason for being late. The impact on people’s lives – our friends, neighbours and colleagues – is just too big. Employers will not want to leave a person out of work, homeless or facing removal because they didn’t fill in a form.