EU Settlement Scheme for Construction Employers – What you Need to do Now

The deadline for EU nationals to apply for residency under the EU Settlement Scheme (EUSS) has come and gone. If you employ EU nationals in your construction business, there are some important factors to consider now.

Hopefully, your employees all applied under the EUSS and their status has either been confirmed or is in the process of being adjudicated. However, if any of your EU employees have not yet applied and/or you intend to employ EU nationals in the future, there are several issues you should be aware of.

Can EU nationals still apply under the EU Settlement Scheme?

While the EUSS application deadline of 30 June 2021 has indeed passed, this particular date was relevant only to those who were able to apply for ‘full settled status’ due to their having five years of continuous residence in the UK prior to 31 December 2020.

EU employees with ‘pre-settled status’ (that’s around 2.3 million EU nationals who had not achieved five years of continuous residence by 31 December 2020) now have up to five years to accumulate the required amount of time in the UK to apply for full settled status. So there is likely to be a steady flow of applications up until mid 2026 for those who wish to live permanently in the UK.

What is the difference between pre-settled status and full settled status?

EU workers who had been living and working in the UK before 31 December 2020, and wanted to continue to do so, had until 30 June 2021 to apply under the EU Settlement Scheme. What type of status they could apply for depended on their employment status and the evidence they were able to supply to the Home Office.

Pre-settled status applies to EU citizens who had lived in the UK for at least one day in the six months until 31 December 2020. It is a temporary status of up to five years and allows limited leave to remain (meaning that if the applicant does not apply for full settled status they will be required to leave at the end of the applicable period).

Full settled status was available to individuals who had lived and worked in the UK for at least five years prior to the deadline and fulfilled the continuous residence criteria. It provides indefinite leave to remain.

Valid reasons for late applications under the EU Settlement Scheme

If your employees have yet to apply for settled status, it will be their responsibility to prove to the Home Office that they had a genuine reason for failing to apply during the application period if they wish to remain living and working in the UK.

If the applicant can prove that an application should reasonably have been made on their behalf, such as by a parent, guardian or local authority, this may be seen as reasonable grounds. Typical scenarios are likely to include the EU parents of a child born in the UK not realising they needed to apply within three months of the birth of the child, and EU parents who applied themselves but did not realise the requirement to apply separately for their children.

The following are also possible valid grounds for late application to the EU Settlement Scheme.

• The applicant has diminished physical or mental capacity and/or specific care or support needs.
• The individual has a serious medical condition or was undergoing significant medical treatment including, in certain cases, hospitalisation with COVID-19.
• The applicant has been a victim of modern slavery.
• The individual is in a controlling, coercive or abusive relationship.
• Other compelling compassionate reasons including a lack of permanent accommodation which prevented them from applying, complex needs that meant they were not aware of the support available to help them apply, they were hampered in accessing the support available to help them apply by restrictions associated with the COVID-19 pandemic.

When an EU citizen is attempting to prove they have a valid reason for late application under the EU Settlement Scheme they will benefit from the assistance of an experienced immigration solicitor who can help them build their case. Without sufficient evidence an EU worker who has does not have settled status will no longer be able to live or work in the UK and could be removed by the Home Office.

What do construction employers need to do?

There are many EU workers employed in the construction industry and UK employers now have a duty to ensure that all new non-UK citizens they employ have the right to work in the UK. Employers who do not check the right to work status of all new hires may face fines of up to £20,000 per illegal employee with no limit on the number of employees that could incur fines. In the worst cases, employers may face a custodial sentence.

Employers who carried out applicable right to work checks prior to the end of the EU Settlement Scheme application period will have fulfilled their legal duties to ensure employees have the right to work. As long as EU employees’ passports and national id cards proved their right to work prior to 30 June 2021, EU construction workers employed prior to the deadline will still be eligible to work in the UK from 1 July onwards. If they have received full settled status they have indefinite leave to remain in the UK and if they have achieved pre-settled status, they will need to apply for full settled status once they achieve the five years of continuous residence in the UK.

Home Office guidance makes it clear that employers are not obligated to check whether existing employees have secured settled status under the EU Settlement Scheme, and that employees have no obligation to prove their settlement status.

How to stay compliant with ‘right to work’ obligations while avoiding discrimination

The application deadline created a fine line for employers between discriminatory behaviour and ensuring the ongoing stability of their workforce. During the application timeline, new hires from the EU could volunteer their status under the EU Settlement Scheme but were not compelled to do so. Thus creating a conundrum for the employer regarding the applicant’s long-term commitment to working in the UK. However, discriminating against employees who had not applied under the EUSS could contravene UK Employment Law.

In order to ensure the future stability of your construction workforce you may wish to carry out retrospective settlement status checks, but this must not lead to discriminatory action against employees who have not applied. Employers may wish to hold informal meetings with EU employees and contractors to make sure they understand the rules around ‘right to work’ following Brexit.

New EU hires, after 1 July 2021, must provide their prospective employer with evidence of their status under the EU Settlement Scheme or prove they have the right to work through another source, such as sponsorship under the new points-based-visa system or via a partner visa.

The introduction of the points-based visa system for EU workers has created a new layer of costs involved in hiring overseas staff, including the need for many more businesses to seek sponsor status.

COVID-19 adjusted measure checks

Despite the global health pandemic, it remains a statutory obligation for employers to carry out ‘right to work’ checks for all new hires. Temporary COVID-19 adjusted check measures were introduced on 30 March 2020 and have been extended until 5 April 2022. These measures include:

• Using video calls to carry out checks rather than face-to-face meetings.
• Allowing scanned documents or legible photographs of documents, sent via email or suitable messaging platform, to be provided by job applicants or existing workers instead of sending originals.
• The provision of the online Employer Checking Service for instances when a prospective or existing employee is not able to provide the accepted documentary evidence.

There are a number of rules that apply in order to ensure the right to work check is valid including:

• During the right to work check video call, the employer must see the original documents and check them against the digital copies. The date of the check should be added to the copy and marked “adjusted check undertaken on [date of check] due to COVID 19”
• If the worker has been granted the right to work under the EUSS or via the points-based-visa programme, or if they have a current Biometric Residence Permit or Biometric Residence Card, the employer can use the online Right to Work checking service during the video call so long as they have the applicant’s permission to view their status details.

Wellers Law Group immigration services for business

Post Brexit immigration is a hot topic and despite the guidance about post-Brexit changes to freedom of movement and right to work being available in plenty of time before the deadlines expired, many businesses had not fully comprehended how the changes might affect their workforce.

If your construction firm hires migrant workers, you will need to ensure that you have carried out the relevant right to work checks and have applied for the right level of sponsorship if you are going to employ EU workers on a points-based-visa in the future.

For assistance on all business immigration matters, contact Rosalind Nunoo on 020 8290 7982 Ros provides expert support which can help you understand and uphold your legal obligations as an employer of EU and all overseas workers.