Settled status: what do employers need to know?

Eligible EU citizens can now apply for the UK's new settled immigration status.

So, who can apply and when; what will having settled status mean; and what will happen in the event of a no-deal Brexit?

The EU Settlement Scheme under a Brexit deal

• In June 2018, the UK government published details of its EU settlement scheme for EU nationals. In December 2018, the UK reached agreements with the EEA countries of Iceland, Liechtenstein, Norway and separately Switzerland giving eligible citizens of those countries the right to apply for settled status in the same way as EU citizens.
• If the UK leaves the EU under the Withdrawal Agreement, EEA (including EU) and Swiss nationals continuously living in the UK for 5 years by 31 December 2020 will be able to apply for "settled status" (indefinite leave to remain).
• EEA and Swiss nationals arriving by 31 December 2020 but who will not have been continuously living in the UK for 5 years will be allowed to stay until they reach the 5 years - then they will also be able to apply for "settled status". In the intervening period, they may apply for and be granted temporary "pre-settled status".
• There is a planned deadline of 30 June 2021 for those eligible to apply for settled status or pre-settled status. Individuals must apply - status is not automatically conferred.
• EEA and Swiss nationals arriving in the UK after 31 December 2020 will have to either hold or have applied for immigration status in accordance with the rules applying at that time.

Who can apply for settled status?

EEA and Swiss citizens (and their family members) continuously resident in the UK prior to midnight on 31 December 2020 can apply for settled or pre-settled status. Five years continuous residence is required for full settled status. This means that they must have been in the UK for at least 6 months of each of the five years (although there are some exceptions for periods of up to 12 months e.g. for military service; work postings).

Individuals already with a valid and documented right of permanent residency or indefinite leave to remain will still need to apply for settled status (but there will be no cost involved).

Family members joining an EEA or Swiss citizen already resident in the UK by 31 December 2020 can apply for settled status. Close family members (as defined) resident overseas on 31 December 2020 but whose relationship existed prior to then and subsists when they come to the UK, can also apply.

Irish citizens will not need to apply but their family members from outside the UK and Ireland will.

The EU settlement scheme applies to nationals of the 27 EU countries; the EEA countries - Norway, Iceland, Liechtenstein; and Switzerland.

When can an application for settled status be made?

The EU settlement scheme has been operating in a phased way. Itbecame fully operational on 30 March 2019. The deadline for applications is currently stated to be 30 June 2021.

How much does it cost?

For anyone who applied for settled or pre-settled status in the pilot or test phases:

• An application cost £65; or £32.50 for a child under 16.
• Those already with valid permanent residency documentation were able to exchange that for settled status for free.
• It was also free for children in local authority care.

Applications made from 30 March 2019 are free. Anyone who applied during the pilot phase will have their fee reimbursed automatically to the card used for online payment. The refund process started from 30 March 2019. Applicants eligible for a refund received an email to the address used for their online application confirming that the refund has been processed. It was expected to take 10 working days for refunds to be credited to most kinds of payment cards (some will take longer). If the refund was not made within that time period or by 20 April 2019 (whichever is later) then the applicant should contact the EU Settlement Resolution Centre.

What is the application process?

The Government wanted to make applications for settled status as straightforward as possible. The aim was for it to be a "streamlined, quick and user friendly" process, done on-line with telephone support. The feedback from the pilot was that the application takes on average 14 minutes to complete.

Those applying will need to go through three steps:

• Prove identity and nationality, by submitting an identity document and recent photo.
• Prove continuous residence in the UK. Existing government data (e.g. National Insurance number from HMRC / DWP) will usually be used to confirm length of residence.
• Declare any criminal convictions / undergo conduct checks against UK and overseas criminality and security databases.

Successful applicants will be sent an email confirming their status and the date it was granted, with a unique reference number. This reference number will be their proof of status; no physical document will be provided. The UK Parliament's Human Rights Committee has been critical of this, fearing that those entitled to settled status may not be able to easily prove it, potentially impeding their access to the rights and entitlements it should afford to them.

What will having settled status mean?

Anyone with settled status will be able to continue to live and work in the UK. They will also be able to travel in and out of the UK; and bring family members to the UK after 31 December 2020.

The UK Government has also given assurances that those with settled status will be eligible for public services, such as healthcare, housing, schools; public funds such as benefits and pensions; and British citizenship, if they meet the requirements and want to apply. However, there is a concern that the Immigration and Social Security Coordination (EU Withdrawal) Bill, currently going through Parliament, will give the UK Government significant powers to amend the social security rights of EU nationals entitled to settled status with no legislative guarantees that they will be retained without alteration. Amendments are being sought to the Bill to ensure that acquired rights of those subject to the EU Settlement Scheme are guaranteed.

What would happen in a no-deal scenario?

In the event of a no-deal, the Government has confirmed that the settlement scheme would still apply, but with some important modifications. EEA and Swiss citizens and family members living in the UK by exit day (Brexit: the three new deadlines explained) would have until 31 December 2020 to apply for status under the settlement scheme.

Further, EEA and Swiss citizens with settled status would be able to be joined in the UK by 29 March 2022 by close family members (where the relationship existed by exit day); and, by 31 December 2020, by future spouses and partners (where the relationship is established after exit).

If there is no Brexit deal, the rules on settled status would not apply to EEA and Swiss nationals and their family members wanting to come to the UK after exit day. From exit day until 31 December 2020 they would be able to come to the UK for up to three months without applying for any immigration status or visa. To stay longer than three months they would need to apply for and obtain European Temporary Leave to Remain (ETLR). ETLR will be valid for a period of three years. To stay for longer than three years a further application would be required under the immigration rules applying from 1 January 2021. The introduction of ELTR has been delayed until exit day.

EEA and Swiss citizens and family members arriving in the UK after 31 December 2020 will be subject to the UK's skills-based immigration system coming into force on 1 January 2021.

Settled status: what do employers need to do?

Communication

The Government has said that employers are not required to communicate details of the EU settlement scheme to their workers, however, it may be helpful from an employee relations perspective to do so. Different communication strategies might need to be devised for different groups of workers, for example EEA and Swiss nationals in the UK; Irish citizens; UK nationals in the EU; and workers being temporarily posted overseas (as this might affect eligibility for settled status - see above). It would be worth highlighting that workers with permanent residency will still need to make an application for settled status.

The government has produced guidance on settled status for employers and an employer toolkit.

Right to work checks

The current right to work checks apply until the end of 2020 (EU passport or ID card). After then holders of settled or pre-settled status will use their online immigration profile to prove to their employer their right to work in the UK.

If you would like to discuss the issues covered in this blog, or require any other immigration advice, please contact Lynne Marr in Brodies' Employment Team.

This blog was originally published on 4 December 2018; and then updated on 23 January; 5 February; 2 and 12 April 2019.