Employers can also use the online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service. They can provide their passport or national identity card as an alternative. Governmentguidancesuggests that, up to 30 June 2021, an employer that insists on seeing evidence of settled or pre-settled status risks a complaint of race discrimination.
Following the UK’s departure from the EU on 31 January 2020, a transition period was in place until 31 December 2020. EEA and Swiss nationals who were in the UK before the end of the transition period have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK.
There is no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it does not need to repeat this.
EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ended on 31 December 2020, they will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.
EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether they require a visa. Government guidance onright to work checksdoes not address this specific issue.
When does an employer need a sponsor licence?
An employer needs a sponsor licence if it intends to employ a foreign national who requires a UK visa, under certain immigration routes. From 1 January 2021, a new immigration system applies equally to European Economic Area (EEA) nationals (except Irish nationals) and other non-UK nationals. Prior to 1 January 2021, employers needed a sponsor licence to employ foreign nationals from countries outside the EEA under tier 2, or the skilled worker route, and certain other routes of the immigration system. Employers that do not currently have a sponsor licence will need to apply for one if they wish to recruit any non-UK nationals, including those from inside the EEA, under the skilled worker route (and certain other routes) from 1 January 2021.
An employer will not need a sponsor licence to employ an EEA national who has settled or pre-settled status, or to employ an Irish national. When an employer has a sponsor licence it can issue certificates of sponsorship to individual foreign nationals. The individual then uses the certificate to apply for a visa. Employers can sponsor an employee only if the role meets the minimum requirements relating to skills and salary.
What should an employer do if an employee’s application for settled status is not successful?
Employees who are European Economic Area (EEA) or Swiss nationals, who are in the UK prior to the end of the Brexit transition period on 31 December 2020, can apply for settled status, which will give them the right to remain indefinitely in the UK. An applicant who has not been resident in the UK for five years will be granted pre-settled status, which can be converted to settled status after five years’ residence. The deadline for applications for settled or pre-settled status is 30 June 2021.
Settled or pre-settled status can be refused on grounds of eligibility, for example if the individual is not an EEA national (or a qualifying family member) or is not resident in the UK. It can also be refused on grounds of suitability, for example if the individual has been convicted of a particularly serious crime or is deemed to be a threat to public security.
If an application is refused the applicant can apply again at any time up to 30 June 2021, submitting new information or evidence. In some circumstances, the applicant can apply for anadministrative reviewof the decision.
An employer could consider providing an employee with access to legal assistance for a further application or an administrative review. Ultimately, if the employee does not obtain settled or pre-settled status, they will not have the right to work in the UK and will need to apply for immigration permission under an alternative route.