Brexit and The EU Settlement Scheme

Earlier this month, it was widely reported that Theresa May has confirmed that EU workers will lose their ‘priority status’ after Brexit.

It is already the case that the citizens of some non-EEA countries must obtain leave to enter and remain under the points-based system. Most employers come across this in two ways: 1) whilst conducting the required right to work checks for new employees; and/or 2) in relation to the sponsorship of migrants under Tier 2 (highly skilled, long term workers) or Tier 5 (highly skilled temporary workers).

After Brexit, EU migrants will also need a visa to allow them to settle in the U.K. for any period of time and to work. We do not yet know exactly what the future visa system will look like but it seems likely to be an extension of the current points-based system which favours highly skilled workers.

In the meantime, EU migrants who come to live in the U.K. prior to 31 December 2020 will be able to use the new EU Settlement Scheme to confirm their status and stay.

Below, we answer some key questions for employers of EU staff about the new settlement scheme:

What does the new EU Settlement Scheme mean for my existing EU workforce?

Going forward, all EU migrants will have to demonstrate their right to live and work in the U.K. If they cannot do so, it will be unlawful to continue their employment.

Who does the EU Settlement Scheme apply to?

All EU citizens living in the U.K. prior to 31 December 2020 and certain relatives: their spouse or civil partner, or unmarried partner with a registration certificate; a child, grandchild or great-grandchild under the age of 21 or a dependent child over the age of 21; a dependent parent, grandparent or great-grandparent; and/or a dependent relative with a residence card to prove their relationship.

Note that the following groups are not required to apply for settled status:

1. Irish citizens
2. EU citizens who have already confirmed their status under the existing EU right to apply for Permanent Residency or are otherwise able to demonstrate that they have indefinite leave to remain.

How do EU workers apply to confirm their immigration status?

The EU Settlement Scheme online application is currently being tested with a small pool of applicants and will open fully by March 2019.

When should the application be made?

The deadline for applications to be submitted is currently set at 30 June 2021.

Those who will qualify for continuous residence (see below) before 30 June 2021 should apply on or after the date that they qualify for it.

Those who will not qualify for continuous residence before 30 June 2021 should apply for pre-settled status instead, and only apply for settled status once they qualify for continuous residence.

What are the eligibility requirements?

Applicants will need to demonstrate proof of:

1. Identity;

2. Continuous residence in the U.K.; and

3. Their relationship with a family member from the EU (only if they are from outside the EU and relying on this relationship).

To meet the continuous residence requirement, applicants must be able to demonstrate that they have been in the U.K. for at least 6 months of each of the last 5 years.

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

Those who have lived in the U.K. for 5 years and spent at least 6 months of each year in the UK can apply for ‘settled status’.

Those who do not meet these requirements can apply for ‘pre-settled’ status which provides for a 5 year stay in the U.K., after which they can apply for ‘settled status’.

How can employers help?

You may be asked to assist staff with proof of their continuous residence by providing copies of relevant documents. This is likely to include P60s or P45s, payslips and employment contracts or letters confirming employment.