As part of the UK’s departure from the EU, the Settlement Scheme was introduced to offer EU, non-EU EEA and Swiss Citizens living in the UK and their eligible family members the opportunity to protect their residence. Applicants will have until 30th June 2021 to apply under the EU Settlement Scheme – and given that this date is only a matter of weeks away, time is of the essence.
Already, preparations for Brexit have caused UK employers more than a few headaches. Now, with the deadline for staff to apply for Settled Status fast approaching, employers are actively encouraging employees who fall within the defined categories to make their application as early as possible.
What happens if they miss the deadline?
In April 2020, the Home Secretary stated that where someone has reasonable grounds for missing the deadline, a further opportunity would be given to them to apply and a flexible and pragmatic approach would be taken to assess such circumstances. A year later, the official guidance on late applications was published.
The guidance states that, following 30 June 2021, benefit of the doubt will be given to applicants in considering whether there are reasonable grounds for the failure of the individual to meet the deadline applicable to them under the EU Settlement Scheme.
In practice, this means the individual must explain why they missed the deadline, and the Home Office must accept that explanation as being a reasonable excuse in order for them to accept a late EUSS application.
It is not clear how long this “benefit of the doubt” grace period will last, so it is essential that applications are made prior to the deadline if possible.
Some of the examples for what constitutes as reasonable grounds for a late application includes:
· Physical / mental capacity and/or care or support needs
If the individual in question does not have the physical or mental capacity to apply to the Scheme in the months leading up to the deadline, this will constitute reasonable grounds for a late application. The person might require care and support services in a care home or their own home.
· Serious medical condition or treatment
Where a person has suffered a serious medical condition (such as Covid-19) or has undergone treatment around the time or in the months leading up to the deadline, this will usually be seen as a valid reason for a late application.
· Abusive relationship
As part of the guidance on late EUSS applications, the Home Office provides for victims of controlling or abusive relationships who are prevented from applying ot accessing the documents they need to do so.
Where a parent or guardian is late in making their application to the Scheme on behalf of a child under the age of 18, this will usually be seen as reasonable grounds for the child to make a late application.
· Modern slavery
If the person making the application is a victim of modern slavery, this will constitute a reasonable ground for a late application made beyond the June 30th deadline.
The Home Office guidance provides several further examples, and provides a clause covering “other compelling practical or compassionate reasons”, which allows scope for those individuals who may miss the deadline due to reasons beyond their control and which are not specified by the guidance.
Clearly, the Home Office is eager to avoid a repeat of the Windrush scandal; the guidelines do stress the importance of understanding the unique circumstances and potential vulnerability faced by applicants. However, even late applicants who are accepted are still likely to face difficulties in the interim, and there has so far been little clarity about what “flexibility and cooperation” will translate to in practice.
What should employers do to prepare?
Although employers are not legally obliged to encourage employees who are EU, non-EU EEA and Swiss Citizens living in the UK to make an application for the EU Settlement Scheme, it is wise to keep employees informed about the upcoming deadline and the implications of failing to apply.
Ultimately, people who fail to apply to the EUSS by the deadline and are not given “benefit of the doubt” under the reasonable grounds the guidance allows for will lose the right to rent and work in the UK. They will also lose access to most social services and benefits including free treatment under the NHS.
For much of 2020, the Home Office did not issue any right-to-work fines due to the pandemic. However, in the final quarter of 2020, 77 fines were issued, and the number of investigations is only set to rise with lockdown easing and the EUSS deadline approaching. After 30 June, EU employees will need to show proof of eligibility to work in the UK.
Businesses who fail to perform right to work checks face civil penalties of up to £20,000 per illegal worker. These are issued to businesses if they employ someone that they know, or had reasonable cause to believe, did not have a right to work in the UK. An original passport or birth certificate can be used as proof of right to work, and employers should ensure to keep copies of identity and citizenship documents with signatures and dates.
Ultimately, employers should proactively carry out right-to-work checks ahead of June 30 to ensure compliance and continue comms regarding the EU Settlement Scheme in case any employees are not informed. Until 30 June employers can continue to use European Economic Area and Swiss passports as evidence of an individual’s right to work in the UK. After 30 June, employees from the EU, non-EU EEA and Switzerland will have to provide proof of appropriate visa or status under the EU Settlement Scheme.
Need advice on preparing your staff for the EUSS deadline? Get in touch with our specialist employment and immigration lawyers today via the quick contact form or our online chat.