The Home Office’s most recent experimental statistics show that nearly 2.6 million applications were made under the EU Settlement Scheme (EUSS) to the end of November 2019, and more than 2.2 million have been concluded. These figures include repeat applications by the same person however.

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It is not possible to accurately estimate the number of people eligible to apply under the scheme but it is likely that at least half of eligible people are yet to apply – the Office for National Statistics estimates there were 3.725 million EU nationals living in the UK at the end of June 2019 but this figure excludes the family members of EEA nationals who are not themselves EEA nationals, and eligible people who are living abroad. Although some people who are currently living abroad are eligible to apply, this fact has not been well-publicised by the Government and there is a high risk these people will miss out altogether.

 

The drop in the rate of applications from October to November (from 590,300 to 142,300) is not surprising as fears over a no-deal Brexit reduced once the Johnson Government negotiated a revised deal with the EU. It is less likely that we will see a further surge ahead of exit on 31 January 2020 because of the new Government’s commitment to leave on the basis of that deal.

 

The Home Office is making significant progress on processing applications, bringing the number of applications outstanding at the end of November 2019 down to 361,900, compared with 525,200 at the end of October.

 

There have been calls for the EUSS to be converted from an application scheme to a registration scheme, however the new Government is not willing to entertain this. Assuming we leave the EU with a deal, what this means is that EEA/Swiss nationals and their family members who are in the UK and fail to apply by the 30 June 2021 in-country deadline will have no lawful basis of stay in the UK.

 

These people will be expected either to make a late application citing substantial reasons for missing the deadline, to apply to regularise their stay under the post-Brexit immigration system or to leave the UK (either voluntarily or through a removal process). Those who do not regularise their status or depart the UK will become subject to the ‘hostile environment’ including being ineligible to work, study, rent property, hold a driving licence or bank account, or access free healthcare in the UK. 

 

At most, eligible EEA/Swiss nationals and their family members now have just under 18 months to apply under the EUSS. If application rates continue to tail off, the larger the surge of last-minute applications is likely to be.

 

We are expecting the Home Office to release guidance to employers this year on what they will be expected to do to ensure they do not employ an EEA national or their family member who does not have the right to work after free movement ends.

 

Right now, there are things that employers can do to minimise the potential headache of having to deal with a situation where an employee misses the EUSS deadline. These include:

• Continuing to issue periodic communications to employees to encourage them to apply under the EUSS and to offer them support now so that they do not leave their application to the last minute or miss the deadline
• Continuing to develop policies around what level of assistance is offered to employees to access advice and to complete the EUSS application process. We find that most employers will at least have immigration specialists provide talks to their employees to guide them and many also offer one-to-one surgeries and ad-hoc support.

Further down the line, employers can:

• Plan moves of EEA/Swiss nationals to the UK so that they enter the UK before the end of the anticipated implementation period on 31 December 2020. Those who come before that date will likely be in a significantly better position than those who come after.
• Issue communications to encourage employees holding pre-settled status to check if they have been absent from the UK for more than 6 months in a 12 month period since their leave was granted, and if so to consider applying for further pre-settled status before the scheme deadline. If they do not apply for pre-settled status again in this circumstance, they may not be able to qualify for settled status before their pre-settled status expires.
• Be alert between 1 January 2021 and 30 June 2021 to the possibility that a potential new employee due to move to the UK may still be eligible to apply under the EUSS if they previously lived in the UK before the end of the implementation period.

For further information, please get in touch with a member of the immigration team or take a look at our Immigration Solutions for Brexit.

Related Item(s): Immigration & Global Mobility, Employment

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Kathryn Denyer,