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One week until the settled status deadline: what should HR be doing?

23 Jun 2021 By Caitlin Powell

With eight days left until EU settlement visa restrictions come into force, people and employment law professionals offer advice on how businesses can best prepare

Employers have just seven days left to make sure their European employees have applied for settled status or risk having to go through the new immigration system to ensure they continue to have the right to work in the UK.

The EU settlement scheme, set up to ensure that citizens from the European Union and Switzerland who were living and working in the UK before freedom of movement ended, closes on 1 July.

From this date, an EU passport or any previously issued EEA residence documents will no longer be sufficient to show an individual has the right to work in the UK, and all EU citizens will have to show they have either settled or pre-settled status or a valid UK visa.

Although settled status applications have to be submitted by individuals themselves, there is a lot that employers can be doing – and thinking about doing – as the deadline nears. People Management spoke to HR professionals and employment lawyers to find out what businesses can do in this final week.

What to do in the run up to 30 June

“HR professionals can offer to support as well as inform those who are eligible to apply for settled or pre-settled status in any final reminder,” says Gerwyn Davies, senior labour market adviser for the CIPD, who suggests employers reassure staff about how easy and fast the application process is, taking just 20 minutes through the Home Office app or website. 

Davies also suggests reminding employees that their family members also need to apply for the scheme.

Karendeep Kaur, manager at Migrate UK, also recommends reminding workers of the consequences of missing the deadline. “It may be useful to remind [employees] that a failure to apply will mean losing access to employment, benefits, the rental market, the NHS and the individual may be subjected to other sanctions,” she says.

Kaur adds there are a few exemptions available for anyone who misses the application deadline, including for individuals who have had a serious medical condition or treatment and those prevented from applying because of a controlling or abusive relationship.

But, warns Kaur, firms cannot be seen to be demanding employees seek settled status, as EU citizens are under no obligation to apply to the scheme.

What businesses can do is ask employees to voluntarily inform them that they have applied for settled status, says Paul Holcroft, managing director at Croner, which can help firms build a picture and prepare to take action after the deadline passes. “Employers run the risk of race discrimination claims if they overstep the mark when dealing with settlement scheme applications”, adds Holcroft, warning that dismissing an employee before the deadline for not applying was “highly likely to be considered as discrimination”.

He adds that while employers can’t submit applications for their staff, they can assist in other ways, such as allowing the use of company IT and providing paid time off for workers to submit their applications.

How companies should proceed after 1 July

Gary McIndoe, managing director of Latitude Law, says from 1 July employers will have to start conducting digital checks for new EU nationals and their family members, which might be an unfamiliar process for some HR departments.

There is no need to change the approach to onboarding Irish nationals – who will continue to have the right to work in the UK – and employees will not need to chase workers employed before 1 July for new documentation. Advice from UK Visas and Immigration (UKVI) has said the new checking process won’t be retrospective, meaning employers only need to have a current, valid passport on file for EU workers employed before the deadline.

Chetal Patel, partner at Bates Wells, adds that if employers do wish to re-check their employee’s right to work after the deadline, this must be done in a non-discriminatory manner, and firms should take into “careful consideration” who is being re-checked and why they are being re-checked.

She adds that as businesses readjust their recruitment processes after the scheme closes, firms still need to be cautious about the risk of discrimination. Firms should ask themselves: “Is the recruitment process fair and are all candidates treated the same way at each stage of the process? Are right-to-work documents requested from candidates at the same stage of the process? Are there clear written recruitment procedures?”

What if an employee fails to apply?

Kaur warns that one of the worst case scenarios of an employee failing to apply for settled or pre-settled status could be that, if they travel abroad, they are refused entry back into the UK or only admitted as a visitor, which would preclude them from working.

If this happens, the employer might be able to sponsor them as a skilled worker, but this will require the firm to hold a sponsor licence. “The sponsorship option will come at a price, therefore individuals should make every effort to apply to the [settlement scheme] prior to 30 June where possible,” she adds.

Patel adds that the authorities will start issuing immigration enforcement notices from 1 July to European citizens found working without the right status or visa, however these will be issued to individuals.

For employers, Patel says: “The wrath of illegal working comes in the form of a criminal offence, but this is reserved for the most serious non-compliant cases of right to work so we wouldn’t expect to see this for the majority of employers,” she says.

McIndoe suggested that, if in doubt, UKVI has an employer enquiry helpline that businesses can call.

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