EU Settlement Scheme deadline looms

As the EU Settlement Scheme application deadline on 30 June is looming, it’s now timely for employers to remind affected staff of their need to apply if they’ve not already done so. There’s an employer toolkit to assist with  communications here. A successful application means the individual is permitted to continue living and working in the UK. However, if someone fails to apply by the deadline, they’ll then be resident in the UK unlawfully and may face forcible removal.

Whilst a late application may be possible, this will be at the Home Office’s discretion and reasons will need to be submitted as to why the application wasn’t made in time. Only those with “reasonable grounds” will have their late applications considered. According to the Home Office’s caseworker guidance, reasonable grounds may include:

• having been a child under 18 whose parent/guardian failed to apply on their behalf
• those who lack the physical or mental capacity to apply
• those with a serious medical condition or undergoing significant medical treatment
• victims of modern slavery, or victims of abusive or controlling relationships.

Given the high thresholds of these examples, it appears that those who fail to meet the deadline simply because they’re disorganised won’t have reasonable grounds.

If an employee no longer has a right to reside in the UK, they’ll then be working for the employer illegally. Details of how to conduct right to work checks from 1 July 2021 onwards haven’t yet been released, but the current guidance states that there will be no mandatory requirement to undertake retrospective checks on existing staff who are EEA/Swiss citizens, and that employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was undertaken in line with the right to work legislation and published guidance.

Employers can carry out retrospective checks if they want to though, provided they do so in a non-discriminatory manner. However, the situation is different if they know, or ought reasonably to know, that the employee no longer has the right to work in the UK as that’s a criminal offence, for which there’s no statutory excuse.