30th June 2021 represents a significant milestone in the UK’s post – Brexit journey to a new relationship with Europe as it marks the end of the grace period afforded to EEA/ Swiss citizens who were resident in the UK on or before 31 December to register under the EU Settlement Scheme (“EUSS”).
This milestone also includes the reintroduction of full Legal Right to Work (“LRTW”) checks for EEA/Swiss citizens in line with those currently required for citizens of the rest of the world.
EUSS – A Reminder
EUSS is open to EEA/ Swiss citizens who can prove that they were physically present in the UK prior to 11pm on 31 December 2020. It is a product of the Citizen’s Rights chapter of the Withdrawal Agreement with the EU.
Applicants who have resided in the UK for five continuous years may be granted Settled Status (often referred to as Indefinite Leave to Remain or Permanent Residence). This status confers the right to live, work, study or simply retire on a permanent basis. It also affords the same access to public sector infrastructure and benefits as British citizens.
Applicants who can prove residence in the UK on or before the cut-off date, but who have not resided in the country for five years, may be granted Pre-Settled Status. This will enable them to remain in the UK until they have accrued the five years necessary for Settled Status.
Applications under EUSS are made via the Government’s EU Exit: ID document check app. In most cases the process is swift and straightforward.
LRTW – Employers Alert
From 1 July 2021, employers will be required to request evidence of the immigration status of EEA/Swiss citizens as part of the LRTW check requirements. This represents a major shift in the approach employers must take to the recruitment of EEA/ Swiss citizens who, until now, have simply been required to produce their passport or national identity card. EEA/ Swiss citizens and their employers benefitted from a grace period of 6 months following the end of the Brexit transition period in respect of the LRTW requirement. Now is the moment of true adjustment for these citizens and their employers.
Employers are required to carry out the RTW check on:
- All new employees before they start work; and
- Current employees with limited permission to remain before such permission expires.
Failure to undertake the check puts employers at risk of civil or criminal penalties if it later transpires that the employee did not have valid permission to remain with an appropriate work authorisation.
Employers are not required to undertake checks on current EEA/ Swiss employees to verify that they have applied under the EUSS or other immigration schemes. These employees continue to benefit from the terms of the grace period. Consequently, employers will have a defence if it later transpires that they did not apply under the scheme.
Individual EEA/ Swiss citizens will however be exposed to sanctions under immigration law if they have not applied under EUSS or another appropriate route on or before 30 June. Failure to secure an appropriate lawful status risks penalties and enforcement action of the kind historically faced only by citizens from outside the EEA.
It is this potential exposure to legal sanction for individuals that is the most important point to take away from the changes due on 30 June.