As the deadline for applications under the EU Settlement Scheme passes today (30 June 2021), immigration law experts have highlighted that employees can continue working while their application is pending past the cut-off date.
The latest guidance for employers states that they should not terminate an EU or EEA national’s employment contract where they discover the deadline for applying for pre- or settled status has been missed.
However, this is only a transitional measure valid up until 31 December 2021, lawyers have warned.
Employees will be given 28 days to apply to the EU Settlement Scheme if they have “reasonable grounds” for missing today’s deadline.
Some EU and EEA citizens living and working in the UK still face an uncertain future, according to law firm Kingsley Napley, with an estimated 350,000 people still yet to apply under the scheme.
According to Home Office figures, 5.6 million EU and EEA citizens and their dependants have applied for settled status.
Ilda de Sousa, immigration partner at Kingsley Napley, said many applications are being refused or declared invalid by the Home Office.
“There is an important legal distinction between applications which are refused and those rejected as invalid. Refused applicants have a right of appeal, whereas applications rejected as invalid have no right of appeal,” she warned.
Right to work
“EU and EEA nationals who have applications rejected as invalid after the deadline will be in difficulty.”
Reasons for an invalid application could be a failure to provide a passport or national identity card or missing a deadline imposed by a Home Office caseworker to provide further information or documents.
“We hope the Home Office will be pragmatic, reasonable and understanding when processing applications from vulnerable applicants especially,” said de Sousa. “However, our concern is that the guidance is not entirely clear on what will be deemed to be a valid reason for a late application and how long the so-called flexible approach will last; a cut-off point should be expected relatively soon.”
Our concern is that the guidance is not entirely clear on what will be deemed to be a valid reason for a late application and how long the so-called flexible approach will last; a cut-off point should be expected relatively soon” – Ilda de Sousa, Kingsley Napley
She said the employment concession where staff can remain at work while their late application is being processed was “important leeway”, but asked how many employers were aware of it.
“Undoubtedly some employees may be terminated unnecessarily in the weeks ahead,” she said.
Chetal Patel, a partner in the immigration department at Bates Wells, said the transitional measures will give organisations flexibility, but employers will still need to know when the workers will apply for their status under the EUSS.
“The measures could prove helpful where employers become aware of information as part of a ‘water-cooler’ moment,” she said.
“Individuals may find themselves facing the wrath of the hostile environment and we could find ourselves in another Windrush like scandal.”
Patel said employers needed to know which documents they can accept as evidence of an individual’s right to work in the UK, particularly if late applications are filed.
Physical checks of right-to-work documents will resume on 1 September, the government has confirmed.
Sarah Williams, head of employment at Taylors Solicitors, warned that the hospitality, leisure, healthcare, logistics and agriculture sectors in particular stand to lose significant numbers of staff because they are so reliant on workers from overseas.
She said many firms appear to be ignoring the issue, possibly because they have been preoccupied with post-pandemic business recovery.
“With Covid-19 dominating the headlines, many employers will have been so focused on simply saving their businesses and making health and safety changes that they will have forgotten about the changes and the deadline, and it’s impossible to stop the clock,” said Williams.
“Ultimately, failure to apply for pre-settled or settled status will prevent people from continuing to live and work in the UK, and employers could face fines.
“From July 1, it will be more difficult to employ EU nationals. An identity card or passport will not allow them to live and work in the UK. Employers who rely on EU workers should be urgently reminding them to apply – it’s quick and easy to do via the government website.”
De Sousa reminded employers that they now needed a sponsor licence to recruit workers from overseas.
“Despite Covid and travel restrictions, the number of sponsor licence applications from UK employers had increased by 255% in Q1 2021 compared to Q1 2020,” she said. “Clearly many employers now accept we cannot function without EU skills and labour and are prepared to pay for it, although the overall drop in employee numbers from the EU will ultimately be very business and sector specific.”