EU workers need to apply to stay – and here’s how to help them

Following a recent workshop with MyUKVisas, our two managing directors sat down to talk about how employers can support their EU workers, as Brexit approaches, and afterwards.

Waiting to see what happens is NOT an option!

Here’s the full conversation between New Dawn Resources’ Vanessa Scrimshaw and Arta Heath of MyUKVisas …

Vanessa: Firstly, thank you for delivering the presentation in Huddersfield. It was really informative, and certainly focused my mind on the need to get out and start talking to my clients on this subject. Spurred on by your presentation, the team and I have started talking to our clients about the number of employees they have from the EU. It has become obvious that many businesses seem to have missed the headlines about a pending staffing crisis. Has this been your experience as well?

Arta:  The whole Brexit process has been so long, and so drawn out, and so inconclusive that it can be quite confusing to work out what has actually happened and what might happen. It hasn’t even been really clear whether the UK will leave the EU or not, so I think a lot of people have adopted a ‘wait and see’ approach.

The EU settlement scheme, which enables EU citizens living in the UK to remain after Brexit, falls into the ‘it has happened’ category and is live now. Around 750,000 of the 3 million EU nationals living in the UK have already applied. For those who haven’t applied or haven’t completed the process, they have ‪until 30 June 2021 to complete their application.

Vanessa: Has this been kept quiet or have we all missed some key Brexit announcements? 

Arta:  There was an initial announcement and the Home Office wrote to employers, but there has been no noticeable public campaign to encourage EU people to apply. There needs to be one.

Vanessa: It was reassuring to hear that there is a scheme set up for EU nationals to apply to stay living and working in the UK after Brexit, in your experience is this a fairly straightforward process?

Arta: In our experience it is fairly straightforward for most people, but it can get complicated if your tax or benefits records aren’t complete or you have a complicated work history. We have helped quite a few people to figure it out, however.

Vanessa: You mentioned two key stages for EU nations to get permission to stay in the UK after Brexit, settled and pre settled status, can you talk me through the differences between the two?

Arta: EU nationals can apply for settled or pre-settled status depending on how long they have lived in the UK. If they have lived here for five years or more, they are eligible for settled status. This is called Indefinite Leave to Remain. If they have not lived here for five years they will get pre-settled status. This is called limited leave to remain. They can then apply for settled status when they have reached five years’ residence. 

The settled status enables people to work, access the NHS, education and benefits and travel in and out of the UK. The pre-settled status does provide people with rights to remain, work and NHS treatment, however their right to benefits would depend on the rights that they had under the current EU law.

Vanessa:  If our clients need more support on this, we will of course direct them to you but are there any websites they should be visiting in the first instance or directing their employees to?

Arta: Yes, www.gov.uk has a pretty comprehensive run-down of what it all means.

Vanessa:  You mentioned that the application process is free at the moment, do you expect this to change in the future?

Arta: There was originally a charge for the application, but this was waived by the government, so it is now free to apply. I don’t expect this to change in the future.

Vanessa: How long does the application process take on average between applying and getting a decision?

Arta: Initially the computer system provided an instant decision if all of your records are in order. Recently we have seen a delay in many cases the decision taking over a week for pre-settled status and even longer for settled status. It will take a bit longer if you have to gather evidence together. 

Vanessa:  On what basis might an EU national be refused settled or pre settled status?

Arta:  The key point is to be able to prove that you are an EU citizen and have lived here. Usually that is straightforward, if you have tax records, for example, but can be trickier if your records are incomplete.

Vanessa:  In a situation where an employee’s application under this scheme is refused, can they appeal the decision, or can the employer do anything to help?

Arta: There is no right of appeal against the decision to refuse an application. Judicial Review is the only way to challenge the decision, however a new application is probably a better and cheaper option.

If an application is refused then the applicant will probably need some help to assemble the necessary evidence, so it might be best to go and see an immigration lawyer. Usually these situations arise because of a lack of documentation and can be resolved.

Employers certainly need to be understanding of the stress their employee might be under, and to ask if there is anything they can do to help. Some employers have engaged with us to explore the idea of supporting their EU staff to make their applications. It’s important to appreciate more generally that many EU nationals are rather angry about the whole thing and feel like the UK doesn’t want them to be here, so showing an interest in how they are feeling is important.

Vanessa:  In your opinion. what will happen come ‪‪30 June 2021 if an employee has not applied to stay, or if they have had their application refused? 

Arta:  This is an interesting question because it is quite likely there will be people who have not applied by then. According to press reports, some EU nationals are refusing to apply on principle. It could well be the case that we end up with a repeat of the Windrush scandal where people end up being deported because they don’t have the necessary documentation. The so-called hostile immigration environment (despite being renamed recently as the ‘compliant environment’) is alive and well in our experience and the Home Office continues to take a hard line against anyone who doesn’t tick all of the boxes.

Vanessa:  What are the obligations on the employer to check their employees’ eligibility to work in the UK post Brexit?

Arta:  It is likely to be the case post-Brexit that EU migrants will be treated in the same way as other international migrants. This means the onus will be on employers to check that they are eligible to work in the UK before employing them, as is the case today for non-EU international workers. There are quite large fines for transgressors, so this is an important point for employers to understand.

Vanessa:  I appreciate that UK-born employers might have missed the headlines about this, but I imagine EU nationals are well aware of the need to apply to remain. Is it your experience that they know about it and are quietly getting on with it themselves?

Arta: In our experience it varies. More than 2 million people have yet to apply, so it would seem many are either unaware or are adopting a wait and see approach. If Brexit finally does happen then the government will need to work harder to notify EU citizens of the need to apply if we are to avoid a nasty mess come ‪30 June 2021 with mass deportations and further damage to the UK’s reputation abroad.

 For help on this issue or any other employment matter, contact us.