The deadline for European nationals to register under the EU Settlement Scheme is now only weeks away.

Employers need to encourage existing staff to register under the scheme by 30 June 2021 to ensure that those impacted are able to continue to live and work lawfully in the UK post-Brexit.

EU, EEA and Swiss nationals can apply to the EU Settlement Scheme if they were living in the UK by 31 December 2020, but must do so before the fast approaching 30 June 2021 deadline.

What is the EU Settlement Scheme?

EU free movement of people has ended. EEA (and Swiss) nationals living in the UK before the end of the Brexit transition period can only continue to lawfully live and work in the UK if they register under the UK Government’s EU Settlement Scheme.

Individuals who have not yet lived in the UK for a continuous period of five years will normally be granted pre-settled status. On obtaining 5 years residence, they can usually apply to move to settled status.

For those who at the time of applying have already lived in the UK for 5 years, they will be granted settled status, thereby securing their ability to continue living and working in the UK without any visa restrictions.

Right to Work checks

Employers of EU, EEA or Swiss citizens can continue to rely on EEA passports or EEA national ID cards when conducting right to work checks on new staff until 30 June 2021. After this, employers will require formal proof of immigration status, which for EEA nationals will likely be proof of registration under the EU Settlement Scheme.

At this point, there is no guidance on whether employers will be asked to check whether existing staff have registered under the EU Settlement Scheme. Employers should exercise a degree of caution in requesting this in the absence of any clear UK Government guidance. Having said that, it is prudent to communicate with staff to encourage them to register under the scheme before it closes.

Right to Rent checks

Until 30 June 2021, landlords in England can continue to request a passport or national identity card from EU, EEA and Swiss citizens as proof that they can rent in England. The current UK government guidance states that EU, EEA or Swiss citizens should not be asked to prove that they have settled status or pre-settled status when starting a new tenancy.

After 30 June 2021, landlords will require proof of immigration status. Where the prospective tenant has settled or pre-settled status, checks can be made online to prove this.

Right to Rent checks do not apply in Scotland.

Failure to Register under the EUSS

Failure to make an application for registration under the EU Settlement Scheme before the 30 June 2021 will result in that individual being unlawfully resident in the UK.

This means they will could lose their eligibility to work lawfully in the UK. They will also face challenges in accessing the rented housing market (in England), healthcare, social services, and other associated rights, in addition to being liable to detention and removal from the UK.

There have been concerns raised around the lack of awareness of this 30 June 2021 deadline and the necessity for EEA nationals (with the exception of Irish nationals) to apply to the scheme to continue living and working in the UK.

A legal action calling for an extension to the scheme was refused by the High Court on the basis that a scheme such as this naturally requires to have a deadline. It also noted that the Home Office has indicated it will allow a grace period for late applications in certain very limited circumstances.

This could include a child applicant whose parent/guardian did not apply on their behalf or an individual who lacked the physical or mental capacity to apply. It is unlikely to apply to those who simply did not get around to applying in time.

Employers are not obliged to communicate details of the scheme to employees, nor is there yet an obligation on employees to inform their employer of having applied.

Nevertheless, employers may still wish to make employees aware of the deadline in order to avoid any disruption that might come in relation to employees who do not apply to the scheme before it closes.

Want to know more?

We are running a Right to work checks and preventing illegal workings webinar next week, on Friday 11 June 2021 at 1-2pm. Click here to register.

Our specialist immigration and visa team will cover what the rules are, how they work in practice, common pitfalls and best practice in conducting Right to Work checks.

For further information on the EU Settlement Scheme or any other aspect of EU free movement of people or UK visas, please get in touch with Jamie Kerr, a Partner in our specialist Immigration & Visa Team.