Brexit Employment Law Expert Highlights The Key Issues To Be Aware Of

Irwin Mitchell Employment partner, Sybille Steiner, provides a detailed explanation of what EU workers need to be aware of as a result of Brexit. 

1. What is Brexit and how does this impact me?

As a result of a referendum in June 2016, the UK Government has started the withdrawal process from the European Union. The Brexit withdrawal agreement was agreed and signed on 24 January 2020 and the UK’s transition period after Brexit comes to an end this year on 31 December 2020.

Therefore from 11pm on 31 December 2020 free movement between the UK and European Countries will end but those who have entered the UK before this time (subject to making an application before 30 June 2021 as set out below) should be able to live and work in the UK after Brexit.

2. What if I have Permanent Residence already?

It is likely that you will still have to apply for settled status as set out below. We recommend that you speak to us or your immigration adviser for further details as your personal circumstances may allow you to move straight to applying for other immigration statuses such as British Citizenship. 

3. What is the EU Settlement Scheme? 

The EU Settlement Scheme enables citizens of the EU, Norway, Iceland, Lichtenstein and Switzerland (for the purpose of this FAQs we have used the term “EU nationals/citizens”) living in the UK and their family members, to obtain the UK immigration status they will require to live, work and study in the UK after the transition period (i.e. from 1 January 2021 onwards). 

There are two applications that can be made under the EU Settlement Scheme – settled status and pre-settled status: 

• Settled status: this is the equivalent of Permanent Residency or Indefinite Leave to Remain which allows you to remain in the UK permanently, once granted. 

• Pre-settled status: this is effectively a five-year visa which allows you to remain in the UK with the right to work throughout the validity of the visa. At the end of five-year visa, you may be eligible to apply for settled status.  

4. Can I apply for settled status? What if I don’t meet the requirements for settled status?

Yes, if you are an EU national or their family member and you have been living in the UK for a continuous period of five years. This means that you have not been absent from the UK for more than 180 days in any of those five years.  

If you have been living in the UK for less than five years, you should apply for pre-settled status. Once you have accumulated the required five-year residence, you can then submit an application for settled status. You must do this before your pre-settled status expires. 

5. How do I (or my family members) apply for settled status or pre-settled status?

For EU nationals and their family members who have been issued with a biometric residence card by the Home Office, you will be able to apply using an online and app-based application form.  

You will first need your original passport (with electronic microprocessor chip) and an Android device or an iPhone 7 or above using the “EU Exit: ID Document Check” app to verify your identity information. You will then be asked for your national insurance number, residential address in the UK, evidence of relationship with EU/non-EU family member (if required), and details of criminal convictions (if any). You may be required to submit pictures or scans of documents that evidence your residence in the UK. These could be council tax bills, utility bills (gas/electric/water etc), bank statements covering the relevant period(s) showing your name and UK residential address.

For non-EU national family members without a biometric residence card issued by the Home Office, you will not be able to use the mobile phone app for the purpose of ID verification. Instead, you are required to complete the online application form and book an appointment with UK Visa and Citizenship Application Services (UKVCAS) to have your ID document (i.e. passport) verified.  You will not be required to send your original passport to the Home Office (other than those applicants mentioned below). 

For certain applicants, you may not be able to use the online service to apply to the scheme – please see question 6 below for further information.

6. Who else can apply other than EU nationals and their family member?

You may be able to apply if you are not an EU national but:

• you used to have an EU family member living in the UK (but you have separated, or they have died)

• you are the family member of a British citizen and you lived outside the UK in an EU country together

• you are the family member of a British citizen who also has EU citizenship and who lived in the UK as an EU citizen before getting British citizenship

• you have a family member who is an eligible person of Northern Ireland (i.e. someone who is a British, Irish or dual British and Irish citizen, has been born in Northern Ireland, at the time of their birth, has at least one parent who held British, Irish or dual citizenship, and is living in the UK by 31 December 2020)

• you are the primary carer of a British or EU citizen

• you are the child of an EU citizen who used to live and work in the UK, or the child’s primary carer

In these cases you will not be able to apply online and will have to contact the Home Office’s EU Settlement Resolution Centre (0300 123 7379) to request a paper application form for your application. You will likely be required to submit your original passports as part of the application process. Because of coronavirus it may take longer than usual for the Home Office to return your documents.

Irish citizens are not required to apply for the scheme. 

7. Is it compulsory for me to apply for the EU Settlement Scheme? If so, is there a deadline for applying?

Yes, the deadline for applying is 30 June 2021, but you must have started living in the UK by 31 December 2020. You may bring a close family member (e.g. spouse or civil partner) to the UK after 31 December 2020 if your relationship with them began before 31 December 2020. 

8. What happens if I don’t apply before the deadline?

You are mostly likely to be asked to leave the UK if no application has been made either under the EU Settlement Scheme or the new UK Immigration Rules by the deadline. We will not be permitted to employ you beyond this date if you cannot provide evidence of have a valid visa. We will be completing revised checks and ensuring that everyone has the correct paperwork in June 2021.

You are welcome to and we would encourage you to provide a copy of your settled or pre-settled status documents in advance of this date if you are able and willing to do so. If you do so, we will not be required to contact you again in June for this paperwork and we will be able to confirm to you sooner that we are able to continue employing you.

9. How much does the application cost? 

It is free to apply to the scheme (either settled or pre-settled status). 

10. What if I already have Permanent Residency (Document Certifying Permanent Residency) or Indefinite Leave to Remain? 

If you have a Document Certifying Permanent Residency issued by the Home Office, you must swap this document to settled status using the online application form by 30 June 2021. 

If the immigration status granted to you is Indefinite Leave to Remain, there is nothing further you need to do. You are not required to make an application under the new scheme, but you may do so if they choose.

11. What documentation will I receive to prove my new immigration status? 

If your application succeeds, the Home Office will email you a letter confirming the decision they have made on your application. Your status, once granted, is linked to the passport or national identity card that was used to apply for the scheme. You will not receive a physical document to confirm your settled or pre-settled status.

The Home Office letter is not a proof of your immigration status in the UK and cannot be used as evidence for the Right to Work Check purpose. You will however be able to use the online checking service to show your right to work to an employer by letting them view your status online.   

The link to your online status is here. To access your online status, you will need the document number you used to make your application – therefore please make a note of your document number for further reference. If you renew or replace the identity document, or you change your name after making your application, you will need to report this to the Home Office so that your immigration status is up to date. This will require sending your original new passport to the Home Office for verification and return. 

12. What rights do I have with settled status or pre-settled status?

Your status gives you the right to stay in the UK. During your visa period (or on a permanent basis in the case of settled status holders), you may work, engage in business or an occupation, be self-employed, be enrolled in education, as long as you comply with any legal requirements for that activity. 

You are entitled to NHS healthcare if you are ordinarily resident in the UK. In this context ordinarily resident means living in the UK on a lawful, voluntary and settled basis for the time being. You may be entitled to access benefits and services, provided you meet the relevant eligibility requirements for the specific benefit or fund. 

Once you have settled status, you will only lose it if you have been absent from the UK for a continuous period of five years (for Swiss citizens and their family members it is 4 years). 

13. What happens after I have applied?

If your application is successful, you will be granted either settled status or pre-settled status. As mentioned above, your immigration status is linked to your EU passport. You will be able to view your immigration status online. 

14. Can I apply for British citizenship? 

Yes, once your settled status has been granted and you have held it for one year, you may be eligible to apply for naturalisation as a British citizen. Further bespoke advice is recommended to consider your personal circumstances.