By Shabana Muneer at Walker Morris (www.walkermorris.co.uk)
WHAT DOES IT MEAN FOR THE CARE INDUSTRY?
Brexit is having a significant effect on employers in the care industry that want to recruit from the EEA. The sector has already suffered severe cuts in recent years and employs around 250,000 non-UK nationals, accounting for 16 per cent of the workforce .
When free movement ended for EEA and Swiss (“EEA”) nationals at the end of the Brexit transition period on 31 December 2020, EEA citi- zens who had entered the UK by this date were given a six month “grace period” until 30 June 2021 to secure their longer-term residency rights by making an application under the EU Settlement Scheme (“EUSS”). The end of the grace period is now less than a month away and, not surprisingly, many employers in the care industry are wondering what they can do to ensure their EEA workers continue to have the legal right to work in the UK beyond that date.
In this article Shabana Muneer, Director at leading law firm Walker Morris, seeks to address some of the common concerns and provide some practical tips on the steps employers in the care industry can take in the final few weeks to protect against the risks associated with employing illegal workers.
SHOULD THE CARE INDUSTRY BE ASKING CURRENT EEA WORKERS TO PROVE THEY HAVE SECURED THEIR STATUS?
The Home Office is very clear that there is no obligation to conduct retrospective right to work checks on existing EEA staff and no authority to oblige them to prove their status under the EUSS, whether before or after the 30 June deadline for applications.
Further, until 30 June, new recruits can volunteer to evidence their status under the EUSS but cannot be compelled to do so without risking allegations of discrimination. From 1 July, any new EEA recruits will need to provide evidence of EUSS status or an alternative right to work e.g., sponsorship or a partner visa.
HOW DO WE KNOW NEW RECRUITS WILL BE ELIGIBLE TO WORK FOR US BEYOND 30 JUNE?
Guidance is clear that employers are not expected to distinguish between EEA nationals who first arrived in the UK before 31 December 2020 (and are therefore eligible to make an application under the EUSS) and those who arrived after this date (who may not be). Demanding evidence of this will be discriminatory, therefore employers are in a very difficult position when it comes to knowing whether EEA workers they take on before 30 June will continue to have the right to work. A sensible precaution would be to have a gentle conversation and sensitively encourage candidates to volunteer information regarding their status or eligibility to apply for it, e.g., in the context of offering to assist with any application that may be required.
HOW CAN EMPLOYERS IN THE CARE INDUSTRY ENCOURAGE EEA WORKERS TO MAKE THEIR APPLICATIONS IN TIME?
The key tool at employers’ disposal in these final weeks before the deadline expires is communication and making sure that EEA workers who haven’t yet made their application are aware that the clock is now ticking. In the run up to the 30 June deadline, employers should there- fore think about:
• Auditing their workforce to assess the proportion of EEA workers and whether this is likely to be a significant issue for them;
• Sending gentle reminders along with links to the latest government information for EEA nationals on making applications in time;
• Raising awareness of the fact that individuals who don’t apply in time will (in all but very limited circumstances) lose their legal right to remain in the UK, access healthcare, rent property etc. Careful thought will need to be given to the tone of such communications;
• Given that the timeframe for making applications is now relatively tight, it would also be worth considering offering any individuals who disclose that they have not yet made an application assistance with the process if they require it; and
• In the longer term, assisting those who obtain time limited pre-settled status to track when their application for settled status will become due.
The Home Office has confirmed that applications will be considered after the 30 June deadline only where there are “reasonable grounds” for the application not having been made in time, e.g., where a person lacked the digital skills to make the application, or where a parent has failed to make the application on behalf of a child. There is still much uncertainty around when late applications will be entertained, and therefore this should not be viewed as a safe fall-back position.
The Home Office guidance is due to be updated in advance of 1 July to provide further details regarding the specific right to work processes that will need to be followed for EEA recruits from this date. We will publish further updates when more information becomes available.
It is in the interests of employers in the care industry to ensure EUSS applications are submitted by their staff in time. The Walker Morris Business Immigration team is here to assist with any queries on the employment of EEA nationals and questions about the recruitment of EEA citizens from 1 July 2021. If you require assistance on any of these issues, please contact Shabana Muneer: