10 things for your 'to do list' before the end of the year

There are major legislative changes being made to the UK within the Immigration and Employment sector that affects all foreign workers and businesses who currently employ EU and non-EU nationals. These changes were announced from the recently updated guidance issued by the government. The guidance is a firm reminder that free movement between the UK and the EU will end from 31 December 2020 and will be replaced by a new points-based system from 1 January 2020.

The guidance introduces several developments which impede on EU nationals being able to freely move to the UK for work. For this reason, the focus for the Immigration team at Shoosmiths is to ensure that businesses are completely in the loop with these developments and that they are fully compliant by the time the end of free movement rolls around at the end of the year.

We have put together a short yet comprehensive list of 10 essential actions which employers need to take now to ensure they are ready for the new immigration system.

1. Get your communications out to EU staff and other affected employees. It is their responsibility to make sure they have eligibility to work in the UK but employers should encourage them to act now.
2. Ensure all your EU workers apply for settled or pre-settled status under the EU Settlement Scheme by 30 June 2021. For more detail on this refer to our FAQ section below.
3. Bring forward recruitment of any EU nationals who aren’t already in the UK to ensure they are in the UK before 11pm on 31 December 2020. This is necessary in order for the individual to apply for pre-settled status under the EU Settlement Scheme.
4. Put it on the Board’s radar! Recruitment from Europe is going to be more difficult from 1 January and as well as that we have a whole host of new rules to prepare for so ensure the Board is aware of what’s involved and the penalties for getting it wrong.
5. Apply for a sponsorship licence if you don’t have one. Employers will need a licence to employ anyone outside of the UK (except for Irish citizens) from 1 January 2021.
6. If you already have a licence in place, ensure it is in order. The new immigration rules call for meticulous record keeping so check your files are up to date and if you lose it, you are going to have to let any sponsored workers go.
7. Work out which sponsored employees need new certificates of sponsorship for next year. Review and update your files for your sponsored employees and all EU nationals, particularly those who do not meet the requirements for settled status.
8. Work out what roles you want to sponsor from January 2021. This will take more careful planning with the introduction of the reduced skill level within the Tier 2 system, but all roles will still have to meet respective minimum standards and salary levels.
9. Update your right to work checks and recruitment policies. These procedures should reflect the new requirements and the way right to work checks will be carried out.  We are still waiting for clarification on the position with EU workers and retrospective checks.
10. Update and train your senior managers, HR and recruitment teams on the changes. Training is key for consistency and compliance, make sure everyone is clear on the new processes and requirements, particularly given the potential for more roles to be sponsored within your respective businesses.  It is likely therefore that more managers will be responsible for sponsored workers and they will need to understand what is involved particularly on the reporting side.

The EU Settlement Scheme: Frequently Asked Questions

With the Brexit transition period coming to an end on 31 December 2020, EU citizens who are already in the UK need to make sure they have taken steps to document and update their immigration status under the EU settlement scheme.

The EU settlement scheme (the “Scheme”) has been running for a number of months now and more than 4 million EU nationals and their qualifying family members have already applied. The deadline to apply for the Scheme is 30 June 2021 however employers should encourage any EU national workers to apply to the Scheme sooner rather than later to avoid issues with travel and evidencing their right to live and work in the UK after our formal exit and in the months to follow.

For employers wanting to support their EU workers with information about the Scheme, we have put together some frequently asked questions.

What is the EU settlement scheme?

• It is a process through which all EU citizens who are already living in the UK can apply to extend the right to live and work in the UK as enjoyed under EU membership. EU citizens can either apply for settled or pre-settled status. Successful applications will mean that they can continue to live and work in the UK (including entering and leaving the country) without any further immigration control or need for visas.

Who falls within the scope of the Scheme?

• All EU, EEA and Swiss citizens and their family members, as well as family members of qualifying British citizens, should consider applying for the Scheme. In order to apply for pre-settled or settled status under the Scheme, EU citizens will have to reside in the UK by the end of the transition period (11pm on 31 December 2020).
• This includes those with an existing UK permanent residence document who can choose to apply for UK citizenship before 30 June 2021 or otherwise will need to convert this to settled status. However, those with indefinite leave to remain or existing UK citizenship do not need to apply.
• Family members include spouses, civil partners and “durable partners”, children and dependants. Durable partners have to satisfy additional conditions which includes evidence of the durability of the relationship (such as a joint financial commitment), that the relationship is not one of convenience and that neither the EU citizen nor the applicant partner has had another durable partner, spouse or civil partner with UK immigration status based on that relationship.
• Irish citizens do not need to apply to the Scheme and can continue to remain and work in the UK with an Irish passport.  However, they can make an application under the Scheme if they want to do so.

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

• Settled status is issued to EU citizens who are able to show that they have been resident in the UK on a continuing basis for a period of at least five years. Pre-settled status is available to anyone who is resident in the UK but who has been here for less than five years or where there has been a break in their period of residence that means that they do not have five consecutive years in the UK.
• Those EU citizens who are granted pre-settled status will be eligible for settled status as soon as they have completed five years’ continuous residence.

What does continuous residence actually mean?

• EU nationals will need to be able to show that they have been in the UK on a continuous basis for at least six months in any given year that they are relying upon to form the five continuous years of residence. Any absence from the UK for longer than six months is likely to end the period of continuity.
• The rules do allow for a single continuous period outside of the UK lasting more than six months but less than twelve months, but only in particular circumstances which include for reasons of pregnancy, childbirth, serious illness, vocational training or an overseas posting. COVID-19 may also count as a reason for absence, but at this stage  UK Visa and Immigration has not listed this as a formal concession.

What is the application process?

• Applications can be made via the app: EU Exit: ID Document Check. Applications can also be made online but proof of ID will need to be provided using a different function. Further information can be found on the government website: https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status.
• Acceptable proof of ID includes a passport, biometric residence card or biometric resident permit. If using the app, applicants will be able to scan the relevant document using the camera on a tablet or smartphone. If online, ID will need to be scanned in and uploaded or, alternatively, submitted by post.
• Proof of ongoing residence in the UK will also need to be provided. If applicants have a national insurance number this is likely to be sufficient and UKVI will be able to carry out an automated check based on tax and benefit records.
• Applicants will need to declare any criminal convictions. Existence of a criminal conviction will not automatically mean an application will be refused, however, failure to disclose a conviction may well be.
• It is free to apply.

Once successful, can the pre-settled or settled status be lost?

• Yes, settled status will be lost if EU citizens spend more than five continuous years (4 years for Swiss nationals) outside of the UK.
• If pre-settled status has been granted, EU citizens can only spend up to two continuous years outside of the UK and will still have to comply with the residence rules to be able to apply for settled status. It is extremely important to remember the residence rules because at this stage we do not believe that there will be a mechanism introduced to extend pre-settled status post-Brexit if the residence requirements for settled status have not been met.

What evidence will be provided for employers?

• Successful applicants will receive an email confirming the outcome of their application. This will contain a code to be given to an employer or future employer and can be used by the employer to carry out an online right to work check. Successful applicants will not be provided with a physical document.

What can employers do to assist their EU workers?

• Communicate the timeframes and application process with workers and emphasise the importance of doing this sooner rather than later to avoid getting stuck in the impending bottle neck of applications close to the deadline.
• Provide access to a tablet or smartphone so that workers can easily access the app and make their application.
• Support the individuals in case of refusal or problems with travel especially in light of the end of the transition period coinciding with the holiday season.