EU workers after Brexit | What should employers do now?

Now that Britain has left the European Union, employers may be wondering what happens in regard to EU citizens under their employment.

If they wish to remain in the UK, workers from the EU will need to apply to the government’s EU Settlement Scheme by 30 June 2021. They may have already done this, or you may wish to point them in the right direction.

If you are keen to support EU citizens applying for settlement, the government has now released a toolkit of information for employers, which includes an overview of the scheme, a template letter to send to EU citizen staff, and other promotional materials to make the process as straightforward as possible.

Below is a brief summary of the advice issued.

EU Settlement Scheme

EU citizens who have resided in the UK for five years or more by 31 December 2020 will be able to apply for ‘settled status’. This entitles them to continue living and working in the UK.

Important points for employers to note include:

The five years in question don’t need to be the last five years, just five consecutive years.
Applicants will only need to show that they have lived in the UK for six months of each of the five years. Even if they have lived outside of the UK for more than six months in any given year, applicants may still be eligible for settled status if their time away from the UK was due to childbirth, serious illness, or being sent abroad by their employer for work or training.
Individuals can apply for settled status if they are from the EU, EEA (which includes non-EU member states such as Iceland, Liechtenstein and Norway) or Switzerland. Family members of these individuals can also apply.
Non-EU family members of EU citizens will also need to apply to the scheme.
EU citizens do not need to apply if they have indefinite leave to remain or enter, or are an Irish citizen, but they can if they want to.

The application process

There are three steps to the online application process.

  • Step 1: Workers will first need to verify their identity and nationality by uploading a digital photo of themselves and providing proof of either their passport, national identity card, or biometric residence card.
  • Step 2: They will then be asked for their National Insurance number as proof of residence.
  • Step 3: The final stage is a criminality check, which will require applicants to declare any criminal convictions (only serious or persistent criminality will affect an individual’s application).

Employers’ duties

Responsibility for applying to the EU Settlement Scheme rests with employees. As an employer, you are not legally required to facilitate the process or communicate with your EU workforce about the scheme, but it’s a good idea to direct employees to the government’s toolkit so that they have all the information they need to do this themselves.

While there is nothing for employers to do now, you should be aware that:

There is no requirement for EU workers to inform you that they have applied to the scheme or notify you of the outcome.
It is unlawful to discriminate against prospective and existing EU staff on the basis of Brexit. This means that decisions about who to hire and whether or not to renew a person’s contract should not be dependent on, or influenced by, their application status.
Right to work checks won’t change until 1 January 2021, and there is no requirement to carry out checks on existing EU employees.
You should refrain from giving immigration advice to EU workers unless you are qualified to do so.

James Tamm

Director of Legal Services

Expert Comment

Although EU citizens have until 20 June 2021 to apply to the scheme, you may wish to encourage workers to apply online now so that they can ensure settled status well ahead of time. It is not yet clear what contingency plans will be in place for those who don’t apply by the deadline; however, supporting staff to achieve settled status in the coming months will reduce the risk of them remaining illegally after this date, thereby minimising disruption to your workforce next year.