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Employers need to check settled status for current and new employees

UK employers need to remind all their EU/EEA and Swiss employees that they must apply for settled status in the UK by 30 June says Robert Salter.

While there is no absolute requirement for employers to do this, by helping ensure that workers understand their legal obligations and make the appropriate submissions on a timely basis, employers will be helping themselves.

In addition, employers should ensure that they have a clear process in place for reviewing the status of all new EU (or EEA/Swiss) employees being recruited from 1 July onwards. From that date employers will be obliged to check that the individuals have settled or pre-settled status (or potentially a frontier worker permit), rather than simply depending upon an EU/EEA ID card or passport as they have been able to do historically.

The Government has deliberately had a ‘soft landing’ approach to Brexit – which means that EU or EEA nationals in the UK as at 31 December 2020 have until the end of June to formally apply for settled status (or pre-settled status) in the UK.

This has meant that employers, for example, haven’t had to review whether their existing EU/EEA (and Swiss) employees in the UK have the right to continue working in the UK during this period.

However, this easement on the part of the Government ceases from July onwards and EU/EEA nationals will lose their automatic rights to continue working in the UK from 1 July 2021 onwards, if they have not applied for pre-settled or settled status in the UK (or some alternative UK rights – e.g., as an Irish national or via the UK’s frontier worker scheme) by 30 June.

Employers should look out for any forthcoming guidance from the Home Office in regards to what should be done in respect of those EU/EEA/Swiss nationals who have not applied for the settled status on a timely basis.

The initial guidance from the Home Office has consistently stated that employers are not obliged to make retrospective checks for existing employees – i.e., for those individuals who were in the UK prior to or before 31 December 2020 and employed by the company before 30 June 2021. However, the Home Office then subsequently announced on 10 June that: “they will provide guidance for employers with workers who have not applied for the settled status on a timely basis shortly”.

While any forthcoming guidance in this area will hopefully not require employers to undertake any new reviews of their employee’s legal status in the UK, it may be sensible to at least consider putting together a provisional plan in this regard.

After all, if the Home Office does introduce ‘retrospective checks’, the cost to employers from making mistakes – in theory up to £20,000 per case – are very significant.

Would you like to know more?

If you would like to discuss the above or how it may affect you, please get in touch with your usual Blick Rothenberg contact or Robert Salter, using the details to the right.

For any press queries, please contact David Barzilay whose details are on this page.

You can also visit our Brexit hub for more information.

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