RIGHT TO WORK - 19.11.2020

OK to ask about EU Settlement Scheme applications?

The new system

From 1 January 2021 the UK will apply a new points-based global immigration system and anyone who wishes to come and work here must meet strict criteria.

At the same time, free movement for EU citizens will end. Those who arrive in the UK by 11.00pm on 31 December 2020 can retain their rights to live and work here by applying to the EU Settlement Scheme (the Scheme) although individuals who have serious criminal convictions cannot apply.

Application deadline

All applications must be submitted by 30 June 2021 . If an EU national fails to do so, they will be left “undocumented”. This means that they will lose their rights to healthcare, employment, rental property, and state benefits.

There are no exceptions to this application requirement and it won’t matter how long an EU national has already lived here.

Updated status

Official advice also says that any individual who has previously been granted “indefinite leave to remain” here should make an application to the Scheme too. This will ensure that they receive an updated immigration status along with the corresponding documentary evidence, which is required to prove the right to work.

Making an application to the Scheme is the individual’s legal responsibility and the employer is not involved in the process.

Asking questions

However, bearing in mind the consequences if a necessary application isn’t made, i.e. important rights are lost, can you ask an employee if they’ve made an application to the Scheme?

Official advice is that you shouldn’t make this type of enquiry, or ask to see any evidence of an application or its status, but there’s no automatic penalty if you do, e.g. you can’t be fined.

Potential discrimination

The questions should be avoided because they link directly to a person’s nationality and/or race. Therefore, it could potentially be deemed a discriminatory employment practice.

Tip. What you can do is ask whether an employee needs any help or guidance with an application to the Scheme (see The next step ).

Retrospective checks

Provided you’ve conducted a compliant right to work check for an EU national who is in your employment before 1 January 2021 , you don’t need to repeat the process again when the right to freedom of moment ends (see The next step ).

Tip. Neither do you have to carry out any checks on these employees to confirm that they have been granted pre-settled or settled status. The above rules also apply to EEA and Swiss citizens.

For an EU Settlement Scheme reminder letter and a right to work checklist, visit https://www.tips-and-advice.co.uk , Download Zone, year 22, issue 21.