Under the new immigration rules, all EU citizens who want to remain here must have been on UK soil by 11pm on 31 December 2020 and have applied for settled or pre-settled status by 30 June 2021. Anyone who remains in the UK after that date may be considered an illegal immigrant and could be deported.
Is there any 'wriggle room' on the 30 June deadline?
In most cases, no. Late applications will only be accepted if there are 'reasonable grounds' for the delay.
It's not been entirely clear what sort of situations will be sufficient to demonstrate that someone has 'reasonable grounds' for not meeting the deadline. However, the Home Office has recently published guidance which provides additional information found in "Appendix EU”.
The guidance provides a non-exhaustive list of potential examples where there may be reasonable grounds for missing the original deadline.
These include where the individual has:
- A physical or mental capacity and/or care or support needs
- A serious medical condition or significant medical treatment (including COVID-19)
- Been a victim of modern slavery
- Been in an abusive or controlling relationship or situation
- Other compelling practical or compassionate reasons
- Ceased to be exempt from immigration control
- Existing limited leave to enter or remain
Each case is fact sensitive and individuals will need to provide evidence to demonstrate why they couldn't meet the deadline.
How long will these grounds be available to applicants who have missed the deadline?
We don't know but suspect it will depend on the reason cited. For example, someone whose medical condition prevented them from meeting the deadline, will be expected to apply as soon as they are well enough to do so (and may need medical evidence to support their application). In many cases therefore, these sort of delays may be counted in days and weeks rather than months and years.
But other cases are less straightforward. For example, it may be years before people escape from modern slavery or controlling relationships. Will the Home Office impose a long-step deadline? And, even if it doesn't what sort of evidence will it demand? Evidence of prosecution?
The Home Office has said that it will give individuals the 'benefit of doubt' and that Home Office staff have been told to take a 'flexible and pragmatic approach taking into account the circumstances of each case' but for how long?
What should employers do if a member of staff hasn't applied for settled or pre-settled status by 30 June?
If you engaged an EU citizen before 30 June you can't ask if they have applied for settled or pre-settled status. Instead, you are allowed to assume that they have the right to live and work in the UK provided you carried out standard 'right to work' checks. It's therefore possible that you will only find out that a member of staff doesn't have the right to work in the UK further down the line.
The Home Office has recently confirmed that employers don't have to conduct retrospective checks and can rely on the statutory excuse provided they complied with the right to work checks required at the time they recruited the individual. That said, many employers are planning to check the status of their staff after 30 June to ensure they are not engaging illegal workers.
We recommend that you engage with all staff, remind them of the deadline and where they can find reliable and up to date information. As the deadline gets closer, you may need to increase the information you provide and perhaps write individually to all staff to ensure that they have read and understood what they need to do.
You can also 'encourage' your staff to tell you that they have applied for settled or pre-settled status and/or have received confirmation that their application has been successful.
Our specialist employment and immigration lawyer Padma Tadi can help you to analyse your unique situation and provide practical specialist advice to support you throughout the application stage.