EU Settlement Scheme: five years on and still unresolved
Late Applications
The EU settlement scheme, which ran from 28 August 2018 to 30 June 2021, enabled EU nationals and their family members to remain in the UK following the Brexit vote. To date, almost 8 million applications have been made.
Nearly 600,000 applications have been made after the deadline. For scale, this is more than double the number of applications made in the Skilled Worker visa category over the same time.
How can applications be accepted so long after the deadline, and how can employers manage this scenario?
Reasonable delay
There are many reasons why there have been so many delays in applications. Many EU nationals who have been living in the UK were unaware of the need to make an application. The application being accessible via a mobile app made life easier for many people but was also an issue for those who were less comfortable with technology. Others made applications that were refused and delayed in submitting new applications and others were refused without knowing.
The Home Office advises that there remains scope ‘indefinitely’ for a person eligible for status under the EU Settlement Scheme to make an application where ‘in light of all the circumstances and reasons, there are reasonable grounds for their delay in making their application’. This means that if a person qualifies for the scheme by virtue of their residence in the UK before 31 December 2020, an application can still be made if that delay can be reasonable explained.
Where a lot of time has passed since the deadline for applications, the reasonable test becomes more difficult to provide for. Applicants need to provide objective evidence for the reason for delay for the entire period of delay. For example, if a person missed the deadline owing to illness, the evidence of illness needs to cover the entire intervening period, not only part of that period.
Right to work issues
There was no requirement for employers to check their current employees had applied under the EU Settlement Scheme, only to check those joining the company after the scheme had closed. Therefore, many companies could be employing workers who either never made an application, had an application refused, or who did make an application for pre-settled status that then lapsed. In these three scenarios these companies are employing workers who do not have permission to work in the UK.
In the case of workers who were already employed, the company is secure with having a statutory excuse against civil penalties. However, in the case of those employed post 30 June 2021, there could be EU employees in the company who do not have the right to work. Penalties for employing illegal workers are now £45k per illegal worker, so what actions can be taken?
Audit the right to work of the whole workforce. It is always a good idea to recheck that you have the right documents for every employee, and it is important not to discriminate in terms of which nationalities are audited. For any EU nationals employed after the scheme deadline, check that no applications are unresolved and check for expiry dates of pre-settled status.
Our team have audited companies small and large, and it is always seen as a positive for the Home Office to be proactively reviewing retrospectively. There is always something to remedy in every audit we have undertaken, so do reach out to us for an initial conversation about how we can support your company remaining compliant.
This article was prepared by Oliver O’Sullivan, our Head of Immigration, who you can contact by email at Oliver.OSullivan@wellerslawgroup.com or by phone at 020 7481 2422.