Settlement Scheme deadline has passed

The EU Settlement Scheme deadline has passed. Applications for EU, EEA and Swiss citizens and their family members who were resident in the UK by 31 December 2020 needed to be submitted by Wednesday 30 June 2021.

According to the statistics from 2 July, there were 6.02 million applications made to the scheme by the deadline from which 5.45 million were concluded.

Changes from 1 July 2021

From 1 July 2021 EU, EEA and Swiss citizens and their family members are required to have a valid UK immigration status to be in the UK, either through the EU Settlement Scheme or through a valid visa.

Employers and landlords can now ask for proof of their status when conducting right to work and right to rent checks. HM Revenue & Customs, The Department for Work & Pensions and the NHS will have automatic access to their status to check a person’s eligibility for free healthcare, benefits and access to public funds.

Individuals can view their status or prove it to someone else online. Those who have submitted a paper application or are not from the EU, Switzerland, Norway, Iceland or Liechtenstein will get a biometric residence card.

A person’s immigration status is linked to the document they used to apply to the EU Settlement Scheme. Therefore, if they change their passport, they must keep their details up to date.

Pending applications 

According to article 18 (3) of the Withdrawal Agreement those still awaiting a decision on their application or have an outstanding appeal against a decision to refuse status, maintain their right to live and work in the UK until their application is determined.

Although, the Withdrawal Agreement and the EEA regulations only cover those entitled to apply to the EUSS whose presence in the UK was in full compliance with EU free movement law, the scheme is more generous in that it is open also to students, self-sufficient people and their family members without Comprehensive Sickness Insurance.

As the EUSS does not verify exercise of Treaty Rights in practice all “in-time” applications will be treated the same. This means an individual undergoing an eligibility check while the outcome of an application under the EUSS is pending, will be in the same position in respect of access to accommodation, work, benefits and services as they were before the deadline.

Those who have submitted their application before the Settlement Scheme deadline has passed have been issued with a Certificate of Application or an email confirmation, which can be used to evidence their rights.

Right to work checks 

The Employer’s guide to right to work checks has a section on “outstanding UK EU Settlement Scheme application made up to and including 30 June 2021”.

The guidance confirms that individuals with a digital Certificate of Application can evidence their right to work using the online right to work service. In this case employers can check their right to work immediately rather than having to contact the Employer Checking Service.

For those who have submitted a paper application the right to work check can be conducted based on the email confirmation by contacting the Employer Checking Service.

To establish a statutory excuse against liability for a civil penalty employers must make a copy of the Certificate of Application or EUSS acknowledgement email and retain this together with the response from the Employer Checking Service.

Late applications to the EUSS

Those who have failed to submit their application before the Settlement Scheme deadline has passed (i.e. by 30 June 2021) can still submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline.

The guidance sets out a wide range of circumstances which are reasonable grounds for a late application, including but not limited to:

• Where a parent, guardian or Local Authority has failed to apply on behalf of a child
• Where a person has or had a serious medical condition, which meant they were unable to apply by the relevant deadline
• If someone is a victim of modern slavery or is in an abusive relationship
• Someone who is isolated, vulnerable or did not have the digital skills to access the application process
• Where a person was unable to apply by the relevant deadline for compelling practical or compassionate reasons – including in light of the COVID-19 pandemic. For example: they were unaware of the requirement to apply because they had no internet access, limited computer literacy, limited English language skills, lack of permanent accommodation, other complex needs, were released from prison or immigration detention after the deadline or did not have a valid ID document in time and did not know they can rely on an expired document).
• Those who ceased to be exempt from immigration control and failed to submit their application within 90 days from the date they ceased to be exempt can still submit a late application if they have reasonable grounds.
• Those with limited leave can apply to the scheme any time after their limited leave expires so long as they have reasonable grounds for applying late in line with the overall guidance.

The guidance also applies to those who fail to upgrade prior to the expiry of their pre-settled status and family members joining an EU citizen sponsor via the family permit route.

What is the legal status of someone who missed the deadline?

If a person who failed to submit an application by 30 June 2021 is encountered by Immigration Enforcement, he or she will be issued with a written notice giving them an opportunity to make a valid application under Appendix EU within 28 days of the date of the written notice.

Unless and until the person is granted a status under the “reasonable grounds” rule the person will have no lawful status in the UK.

Employers are only required to conduct right to work checks on EU, EEA and Swiss citizens hired after 1 July 2021.

If an existing employee has missed the deadline and it comes to the attention of the employer, they can give them 28 days to apply rather than cease employment.

It is worth noting that the 28-day grace period is only temporary and expires on 31 December 2021. According to the Employer’s guide to right to work checks any current worker found to lack the status after that date will have to be fired rather than directed to make a late application.

EU Settlement Scheme advice from UK Immigration Lawyers

If you would like to find out more about right to work checks on EU, EEA, Swiss citizens & their family members we offer a HR department training.  Get in touch with the Migrate UK team to discuss further.