Employing EU nationals – Employer Toolkit launched

As we move towards the EU withdrawal date of 29 March 2019, the government has released more information on the rights of EU nationals living in the UK with the launch of a dedicated employer Toolkit.

From an employer’s perspective it is helpful to know the key dates and be able to provide employees with information on the proposals. There is however, no obligation to provide employees with advice on their immigration status.

What is the current state of play?

We know that the government plan to move towards an EU Settlement Scheme for EU nationals living in the UK who arrive here before 31 December 2020. On 21 June the government issued an updated position where they stated:

“In the meantime, there is no need for EU citizens and their family members who are here before the UK withdraws from the EU on 29 March 2019 to seek residence documentation now under current free movement rules, unless they intend to apply for British citizenship as soon as they are eligible to do so or they wish to sponsor their family member’s visa application under the Immigration Rules. EU citizens living in the UK and their family members will need to apply under the settlement scheme to obtain their new UK immigration status.”

https://www.gov.uk/government/news/home-office-publishes-details-of-settlement-scheme-for-eu-citizens

It is also worth bearing in mind that the proposals are still to be approved by Parliament.

Details of the settlement scheme

• The settlement scheme will open in a phased way from later this year and will be fully open by 30 March 2019.
• It will be mandatory to hold UK settled status by July 2021.
• The government has stated that those applying under the scheme will need to complete 3 steps.
• They will need (1) to prove their identity, (2) show that that they live in the UK, and (3) declare that they have no serious criminal convictions.
• It is proposed that an application will cost £65 and £32.50 for a child under 16. Those who already have valid permanent residence or indefinite leave to remain documentation, will be able to exchange it for settled status for free.
• Irish citizens are not included in the scheme and will not need to apply for settled status.

There will be two new processes: settled status and pre-settled status.

Settled status

• EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely after this period, (unless the EU citizen leaves the UK for a period of more than 5 years).
• Individuals will be required to prove that they have lived continuously in the UK. They will not have to prove that they have either been working, studying or held Comprehensive Health Insurance.

Pre-settled status

• EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘presettled status’, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.

Family members and implications

• EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
• Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.

Comment

The government has explained that there is no obligation on an employer to pay for the costs of individuals applying for the settlement scheme or to advise them on how to complete the forms, although obviously employers may have a role to play in terms of providing evidence if this requested.

There are concerns around whether there will be sufficient resources within the Home Office to deal with the numbers applying here. According to May 2018 figures there are 2.29 million EU nationals currently working in the UK, and obviously the number of people applying for settled status will be greater than this when family members are included. An individual who does not apply to join the scheme at the requisite date will have no legal status to remain in the UK.

Although the government has said this application involves three easy steps, the need to prove continuous residence may be the aspect which proves to be problematic for some EU citizens if they have had lengthy absences from the UK. Generally speaking, those who leave the UK for more than 6 months in any 12 month period will break their 5-year period of continuous residence. This may result in individuals applying for pre-settled status before moving onto settled status. The Statement of Intent published in June makes it clear that the Home Office’s aim is to grant applications and not to refuse them.

Lastly, the proposals outlined above assume an agreement to a transitional period and on the future relationship between the UK and the EU. Should a “no deal” Brexit occur all bets are off.