The deadline for EU nationals to make an application for EU settled status under the EU settlement scheme passed on 30 June 2021.

So what is the legal status of those EU nationals who are in the UK and have not secured either pre-settled or settled status? What about those EU nationals still awaiting a decision having made a valid application on or before 30 June 2021 or those who missed the deadline altogether? Many employers are now questioning whether these individuals can be employed legally in the UK.

EU nationals still waiting for a decision on their EU settled status application

For those still awaiting a decision on a valid application, there is a huge backlog of applications to be processed by the Home Office and getting a decision can take months, particularly in more complicated cases. This situation has not been helped by the fact that applicants who are anxiously waiting for a decision have been unable to get a response from the Home Office in relation to the progress of their application, either by telephone or email.

However, applicants and employers should take comfort from the fact that the Withdrawal Agreement and the relevant UK regulations provide that, pending a decision or any appeal against a refusal, EU nationals retain their legal right of residence in the UK as long as they were lawfully resident in the UK before 31 December 2020. Applicants will have received a Certificate of Application from the Home Office confirming receipt of their application for pre-settled or settled status and this can be used to prove their right to work, rent and access services while they are awaiting a status outcome. Therefore, if a potential employee states that they are waiting for a decision on their status then employers should ask for the prospective employee’s Certificate of Application to prove their right to work.

EU nationals who missed the deadline for EU settled status

There have been some news reports recently that as many as 80,000 EU nationals could lose their right to live in the UK due to errors in their applications making them invalid or void. This effectively means that they have missed the deadline to make a valid application. For those EU nationals who have missed the deadline altogether (either because their previous application has been declared invalid or because they have simply not made an application at all), the Withdrawal Agreement states that they are still permitted to make a late application within a further reasonable period of time if there are reasonable grounds for them failing to comply with the deadline.

The strict legal position is that, unless and until they make a late application, these EU nationals do not have a right to reside in the UK and are therefore in the UK illegally. However, the Home Office has made various policy statements about what will happen in practice if an EU national is found by someone in authority (such as the Home Office or an employer) to have missed the deadline. Essentially, the EU national will be given 28 days to make a late application. However, the guidance for employers makes it clear that if an EU national applies for job with them after 30 June 2021 and they have not applied for pre-settled or settled status (and they have no alternative immigration status in the UK) then the EU national will not be able to pass a right to work check and must not be employed. If the employer becomes aware that an existing employee has missed the deadline, they can give them 28 days to apply rather than dismiss them. However, this 28 day grace period concession is only temporary and expires on 31 December 2021. Furthermore, employees are reliant on their employer actually being aware of this concession, which is not always the case.

If an EU national is making a late application, they will still have to prove that they had reasonable grounds for failing to apply before the deadline (such as a serious medical condition in the months before, or around the time of, the deadline or another compelling practical or compassionate reason). However, the guidance also suggests that there will be flexibility, at least for an initial period after the deadline, for those who are applying late but who do not have an obvious basis for their late application. The Home Office has confirmed that, for an ‘initial period’ after the deadline, in most cases late applications will be accepted where a person was unaware of the need to apply. The person will simply need to explain why they were unaware and will not be expected to demonstrate reasonable grounds or provide any supporting evidence. There remains ambiguity on how long this ‘initial period’ will last and indications are that the guidance will be reviewed sometime later this year.

So, the legal status of EU nationals is protected in various ways even if they did not secure their status under the EU settlement scheme by 30 June 2021. People who validly applied by the deadline and are now awaiting a decision are in the strongest position and employers can employ these individuals if they prove their right to work with a valid Certificate of Application. However, applicants who missed the deadline altogether are strongly advised to seek urgent immigration law advice on their application as this will often be their last chance to secure their status to live and work in the UK.

If you require immigration advice (either as an individual or as an employer) on this issue, please contact the Immigration team.