30 July 2021

The deadline for applications to the EU Settlement Scheme (EUSS) was 30 June 2021. In this article, we’ll give an overview of the EUSS, how to apply if you missed the deadline and some important considerations for employers.

End of free movement
The UK left the EU on 31 January 2020 and the transition period ended on 31 December 2020. Schedule 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 makes provisions to end rights to free movement under retained EU law. Since 1 January 2021, all non-British citizens are subject to the UK’s domestic immigration system. This includes citizens from the EU, Norway, Iceland, Liechtenstein (‘EEA’) and Switzerland, unless they successfully applied to the EUSS by the June deadline.

What is the EUSS?
The EUSS allows EEA and Swiss citizens who were living in the UK before 31 December 2020 to protect their rights to live and work in the UK. The deadline for most people to apply was 30 June 2021.

What is the difference between settled and pre-settled status?
EEA and Swiss citizens who have been living in the UK for five years or more can apply for settled status. This is equivalent to indefinite leave to remain (ILR). Those holding settled status for at least 12 months can usually apply for British citizenship.

EEA and Swiss citizens who have been living in the UK for less than five years can apply for pre-settled status. Once they meet the five-year residency threshold, they can apply for settled status and must do so before their pre-settled status expires.

Individuals with settled or pre-settled status can continue to enjoy the rights they had when the UK was part of the EU. This means they can live, work and study in the UK, and they can travel in and out of the country. They can also access public funds and use the NHS for free.

Who is exempt from the EUSS?
The following people do not need to apply:

• individuals with indefinite leave to enter or remain;
• Irish citizens; and
• Frontier Work permit holders – or those eligible for one – provided they continue to live outside the UK whilst working here.

Who is exempt from the 30 June 2021 deadline?
The June deadline does not apply to the following people:

• a family member of an EEA or Swiss citizen who was living in the UK before 31 December 2020 and who joins them on or after 1 April 2021;
• a child who was born or adopted in the UK on or after April 2021;
• a family member of an eligible person of Northern Ireland who is from outside the EEA or Switzerland, and they could not return to the UK by 31 December 2020 without the family member;
• a person who is exempt from immigration control or stopped being exempt after 30 June 2021;
• a person living in the UK with indefinite leave to enter or remain which expires after 30 June 2021; and
• a family member of a British citizen with whom they lived in the EEA or Switzerland by 30 December 2020 and with whom they returned to the UK.

What if you missed the deadline?
Individuals who are eligible for the EUSS and have ‘reasonable grounds’ for missing the deadline can still apply after 30 June 2021. The government has published a non-exhaustive list of circumstances that qualify as ‘reasonable grounds’ and has said that it will adopt a ‘pragmatic and flexible approach’ to considering cases.

In addition, it has said that there remains scope ‘indefinitely’ for an eligible person to make a late application.
Examples of ‘reasonable grounds’ include:

• a person who is the victim of modern slavery or is in an abusive relationship;
• a child or parent of a child who did not know they needed to apply;
• a person who has a medical condition, or physical or mental capacity issue that prevented them from applying;
• a person who has care needs or their carer did not know they needed to apply; and
• a person who had indefinite leave to remain and did not know they could apply.

One potentially wide-ranging ground is a ‘compelling practical or compassionate reason’ preventing a person from applying. The government has confirmed that this includes individuals being prevented from applying due to issues relating to COVID-19.

What checks do employers have to do?
Employers are not responsible for ensuring that staff members have applied to the EUSS by the 30 June 2021 deadline. In addition, they are not expected to carry out retrospective right to work checks on EEA and Swiss employees who were hired before 1 July 2021. Employers who do decide to carry out retrospective checks must do so in a non-discriminatory manner. If an employer discovers that an eligible employee has not got settled or pre-settled status, they should advise that they make an application within 28 days.

As of 1 July 2021, EEA and Swiss citizens must evidence their right to work in one of two ways. Those with settled or pre-settled status must prove their right to working using the Home Office’s online service: ‘prove your right to work to an employer’.

EEA and Swiss citizens that have not been granted leave under the EUSS must evidence their right to work using the documents set out in legislation. Irish citizens can continue to evidence their right to work by using their Irish passport or passport card.

Get in touch
For further information on forthcoming changes to UK immigration law, see our website, or contact your assigned LDI lawyer or enquiries@lauradevine.com.