What should you do if you discover that an existing employee hasn't applied for settled or pre-settled status?

All employers in the UK have a responsibility to prevent illegal working. You do this by conducting simple right to work checks before you employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status. Provided you've done this (and complied with the record keeping requirements), you will usually be able to rely on the 'statutory excuse'. This is important, because you can be fined up to £20,000 for each illegal worker you employ. If you have a statutory excuse, you will usually avoid being fined, even if it later transpires that your employee didn't have the right to work in the UK. 

You will commit a criminal offence under the Immigration, Asylum and Nationality Act 2006, if you know or have reasonable cause to believe that you are employing an illegal worker. You may face up to five years’ imprisonment and/or an unlimited fine.

Impact of Brexit

The UK has left the European Union and free movement ended on 31 December 2020. There followed a six-month grace period during which relevant aspects of free movement law were saved to allow eligible EEA citizens and their family members resident in the UK by 31 December 2020 to apply to remain here under the EU Settlement  Scheme. This period ended on 30 June 2021. 

From 1 July 2021, EEA citizens and their family members require immigration status in the UK. They can no longer rely on an EEA passport or national identity card to prove their right to work. Now they have to provide evidence of lawful immigration status in the UK, in the same way as other foreign nationals. 

In most cases, they will need to show have applied for, or received settled or pre-settled status on or before 30 June 2021. If they arrived after 11.00pm on 31 December 2020 they need a visa in order to live and work in the UK.

Retrospective checks

The Home Office has made it clear that you don't have to undertake retrospective checks on any EEA citizens who started working for you before 1 July 2021. You will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks you made complied with the guidance that applied at the time you made them.

But, many employers have chosen to undertake checks anyway for their own piece of mind and have discovered that some members of staff haven't applied for settled or pre-settled status and don't have any other valid right to live and work here (such as being granted indefinite leave to remain). 

New guidance

The Home Office updated its 'Employers guide to right to work checks' on 1 July to reflect the new rules. This now states that you don't have to immediately dismiss a member of staff who hasn't applied for settled or pre-settled status by the deadline or doesn't have any other valid visa in place. 

Instead (and if you want to) you can advise the employee to make an application under the settlement scheme within 28 days and continue to employ them. 

However, you can only offer this if they started working for you on or before 30 June. It doesn't apply to anyone you've employed since that date and won't apply if you know that your employee isn't eligible to apply because, for example, they entered the UK after 11pm on 31 December 2020.

Plus, this flexibility only lasts until the end of this year. So, if you discover that a member of your staff doesn't have the right to work here on, for example, 1 January 2022, you will have to take immediate steps to dismiss them. 

Reasonable excuse for missing the deadline

Anyone who missed the deadline will have to persuade the Home Office that they had a 'reasonable excuse'. We discussed the sorts of scenarios the Home Office will consider in our previous article: EU settlement scheme: what options do your staff have if they miss the deadline? 

We suspect that many people will rely on 'compelling practical or compassionate reasons' as this is a broad category and could cover anyone who was unaware of the need to apply, perhaps because e they had no internet access, limited computer literacy or limited English language skills etc. It could also include people who didn't apply in time because they did not have the required evidence, for example, they could not get a valid ID document in time and were unaware they could rely on an expired document.  

Time limits and record keeping

If you decide to give your employee time to apply for settled or pre-settled status there are a number of steps you both must take:

1. The employee must provide you with confirmation that they have made their application within the 28 day deadline. They will receive a Certificate of Application or an email (or letter if they submitted a paper application), confirming receipt of their application. 
2. They must show this to you. Once you have this information, you must request a right to work check from the Home Office Employer Checking Service. It will give you a Positive Verification Notice (PVN). You must retain the PVN and a copy of the individual’s application, or evidence of their application, along with the initial right to work check you carried out on or before 30 June 2021. These will then provide you with a statutory excuse against a civil penalty for six months. You can continue to employee them during this time.
3. Before the PVN expires, you must do a follow-up check to maintain your statutory excuse against a civil penalty. If the individual has been granted status before the PVN expiry date, they can prove their right to work to you using the Home Office right to work online service. 
4. If the follow-up check confirms that the application is pending, you will be given a further PVN for six months.
5. If the follow-up check confirms the application has been finally determined and refused, then you will not be issued with a PVN and you must take steps to terminate the individual's employment. 

Our advice

We recommend that you think about conducting retrospective checks. That way, if you find out that you are employing an EU citizen illegally, they have time to try and put things right. And, that will be less disruptive for your organisation in the long run.

Need help?

Our specialist employment and immigration lawyers Padma Tadi and Sybille Steiner can help you to decide how to deal with any member of staff who hasn't applied for settled or pre-settled status in time.