Three reasons the EU Settlement Scheme is still relevant for employers

Reason 1: automatic extension of permission for pre-settled status holders

The Home Office has recently confirmed that from September 2023, any individual who holds pre-settled status under the EUSS will receive an automatic two-year extension without needing to make a further application. They will receive confirmation from the Home Office of the extension directly, presumably by email notification.

The extension should be visible online by the time a repeat online right to work check is required, however it may be necessary for individuals to contact the EU Settlement Scheme Resolution Centre where this has not happened before the date their existing pre-settled status is stated to expire.

Points for employers to note:

• Staff who deal with right to work checks should be made aware of this change;

• Internal procedures for right to work checking should be updated to signpost individuals to generate a share code before the expiry of their pre-settled status, rather than signposting them to make a further application under the EUSS; and

• It is likely that the Employer's guide to right to work checks will be updated in the near future to provide further guidance to employers regarding the automatic extension of pre-settled status.

Reason 2: Pre-employment right to work checks

Our clients are still encountering situations where a potential new hire presents them with a residence document issued under the regulations that governed residence for EEA/Swiss nationals (EEA nationals) and their family members before the end of 2020. These documents have not been valid evidence of right to work since 1 July 2021.

Most commonly in our experience, holders of permanent residence cards or documents have erroneously thought they did not need to apply under the EUSS because they had permanent residence. Permanent residence in accordance with EU law is not the same as indefinite leave to remain granted under the Immigration Rules. Unless a person’s endorsement states ‘indefinite leave to remain’, a late application under the EUSS may be required to regularise their immigration status.

To complicate matters further, holders of indefinite leave based on EU law rights will have had this issued to them in 2006 at the latest. An indefinite leave endorsement can only be accepted for a compliant right to work check if it is in a current passport. Due to the passage of time, the passport of an EU law-related indefinite leave holder will now have expired. They will need to obtain a biometric residence permit and allow the employer to carry out an online right to work check on this.

Points for employers to note:

• Failure to apply under the EUSS commonly comes to light when a person changes jobs;

• There are still some people who last left the UK with permanent residence status within the last five years and who may be eligible to make a late EUSS application – their potential eligibility may come to light at the point at which they want to return to the UK for work;

• Permanent residence is not the same as indefinite leave – if in doubt about documents presented for right to work checks, seek specialist immigration advice; and

• Check new joiners’ right to work sufficiently ahead of their start dates to enable any issues with right to work documents to be identified and addressed.

Reason 3: late applications for new or existing employees

If a potential new joiner needs to make a late application under the EUSS, an employer will not be able to complete a compliant right to work check until they have been shown a certificate of application (CoA) to the EUSS issued by the Home Office and have also received a positive verification notice (PVN) from the Employer Checking Service.

Previously, the certificate of application was issued shortly after receipt of the application. However, since 9 August 2023, the CoA will not be issued until after the Home Office has assessed and accepted that there are reasonable grounds for making a late application. Depending on volume of applications and caseworker resourcing, this potentially means that it will take longer for a CoA to be issued.

The Home Office’s EUSS caseworker guidance has also been updated from 9 August 2023 to take a more narrow approach to what caseworkers should consider reasonable grounds for making a late application. Whereas previously applicants were to be given the benefit of the doubt based on information provided with the application, under the revised guidance they are required to prove their reasons on the balance of probabilities and to provide objectively verifiable evidence in support of them.

An employer may also have existing employees in their workforce who have failed to make an application under EUSS when required.

Although employers are not required to make retrospective right to work checks on EEA national or family member employees who joined before 1 July 2021, it may nevertheless come to light that a person has failed to apply. The Employer's guide to right to work checks still currently says that if an employee believes they are eligible under the EUSS, the employer can signpost them to apply and ask them to do so within 28 days. The employer is only expected to take steps to terminate the person’s employment if they do not make an application within 28 days. The new policy on validation of applications may mean that the employer will not have access to a CoA and be able to obtain a PVN as swiftly as before, so this could throw up some practical issues around whether and when an employer is expected to take termination action if an employee is unable to produce a CoA within 28 days.

Points for employers to note:

• It may take longer for a CoA to be issued, and therefore for right to work to be established;

• More applications are likely to be rejected as invalid due to the more restrictive policy on showing reasonable grounds for lateness;

• Employers and individuals may need to weigh up whether it is tactically preferable to make a late application under the EUSS or to apply for alternative immigration permission, especially if the person is not already in the UK or there is time-pressure on their start date;

• Where an EUSS application is rejected due to lack of reasonable grounds for lateness, an individual may need to consider whether to reapply with more substantial evidence, or to regularise their UK immigration status another way, e.g. as a joining family member under EUSS if eligible, or in another route such as sponsored employment; and

• When the Employer’s guide to right to work checks is next updated, it could be revised to take a more restrictive stance on individuals who have failed to apply. Employers may therefore wish to consider whether to take steps to identify any such individuals in their workforce and advise them to apply.

If you have questions about the topics covered in this article, please get in touch with a member of our Immigration Team.