European nationals provide an essential labour pool for the hospitality sector to fill a wide range of roles. With Sajid Javid’s recent announcement that free movement from Europe will end post-Brexit, there are inevitably concerns about how to fill the roles of chambermaids, bar staff, waiters, chefs and the rest of the team essential for the smooth running of hotels, bars and restaurants, who are frequently from the EU.

The draft EU Withdrawal Agreement has set out provisions for the legal status of European nationals following our departure from the EU and in light of this, the EU Settlement Scheme has been implemented by the Government. This does give a clear indication of the ongoing rights of EU nationals to work in the UK.

The EU Settlement Scheme

Although no Government minister will publically admit this, the scheme effectively allows for the ongoing free movement of EU nationals up to the end of the implementation period in December 2020. Prior to this date, EU nationals will be able to continue to enter the UK to live and work without difficulty. Employers can continue to be satisfied as to their right to work by taking a copy of their European passport or ID card.

It opened on a trial basis in the North West in August 2018 and is being extended nationally. Essentially it provides a process for EU nationals to register with the UK Government, for either:

  • Settled status (indefinite leave to remain) – those who have completed 5 years residence in the UK will be able to apply
  • Pre-settled status (limited leave to remain) – for those with less than 5 years residence

Both provide for the right to live in the UK, work, study and access public funds and services.

Deadline for registration

The scheme is voluntary until 30 June 2021. Employees may register earlier but they cannot be required to do so. They do however need to be aware that if they are not registered by the June deadline, they will then be considered to be over-stayers and will no longer be able to work legally in the UK.

Beware: Employers must be acutely aware of this deadline as they could face a civil penalty if they employ a European national without settled or pre-settled status after June 2021.

How can employers prepare?

Employers do not need to do anything immediately but are advised to start getting ready for 1 July 2021 when the scheme will become mandatory.

Steps that can be taken now:

  • Understand which employees will need to apply under the new application route, including the family members of European nationals
  • Ensure all HR records and right to work checks for all employees are up to date
  • Put in place a communications strategy for employees as the scheme is rolled out and in the run up to 1 July 2021 and ensure employees have access to information about the new scheme. More information can be found HERE
  • Ensure that employees provide evidence of having registered on the scheme when they do so to enable HR records to be updated
  • Offer to support affected employees with the application process
  • Ensure you undertake a full audit of status documentation shortly before 30 June 2021 to ensure that all employees continue to be in lawful employment.

How can employees prepare?

The Home Office intend to open an online application process accessible through smartphones (via an app which will read the chip in biometric documents such as passports to enable applicants to retain their ID during the application process.

It has confirmed that those applying under the scheme will only need to prove two things; their identity and their residence in the UK. They will also need to declare they have no criminal convictions.

  1. Proof of identity – a valid passport or ID card will be sufficient proof of identity. An applicant will be able to scan their passport to the online app, which will read the chip in a biometric document. They will be able to upload a recent digital photo of their face.
  2. Proof of residence – applicants will not need to provide substantial evidence of residence. The Home Office intend to use HMRC and DWP records to confirm residence in the UK. An applicant can give HMRC permission to share their data with the Home Office and evidence of employment from HMRC will be accepted as proof of residence. In addition, an applicant can upload scanned copies of their P60s, bank statements or utility bills to evidence residence.
  3. Declare any criminal convictions – the UK crime database will be cross checked to ensure that the individual is not a serious or persistent criminal or poses a security threat. This will be judged on a case-by-case basis.

Proposed fees:

  • £65 for an adult application
  • £32.50 for a child under 16
  • No fee for those who already have a document certifying permanent residence
  • From April 2019, there will be no fee for those applying for settled status who already hold pre-settled status.

How will settled status be issued?

EU nationals are unlikely to receive a biometric card or passport endorsement. Proof of status will be accessed through an online system. Non-EU national family members should still receive a biometric residence permit.

Right to work checks will be carried out through the online system with electronic verification provided to the employer to satisfy them that their employee has a right to work.

The Home Office have emphasised that caseworkers are looking to grant applications rather than refuse and caseworkers will work closely with applicants to give them opportunities to remedy any deficiencies or omissions in the application.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.