Legal fears grow over EU settlement scheme

A "significant" increase in the number of EU Settlement Scheme applications being refused by the Home Office should prompt UK companies to take swift action to safeguard the futures of their European staff, according to a prominent law firm.

EU flag containing a Union Jack in the shape of the UK
Elaine McIlroy, a partner in employment and immigration team at Scotland-based Brodies, is also warning of the possibly detrimental impact that lengthy periods of remote working outside the UK could have on EU employees who have achieved pre-settled status.

EU Settlement Scheme: apply early to avoid refusal or "no status"

Ms McIlroy points out on the company website that, by the end of last month, there had been 4.06 million applications to the EU Settlement Scheme, with 3.88 million having been successfully completed.But 16,600 applications had been refused by the end of September - a sharp increase on a total of just 2,300 by the end of June."This marked increase in refusals and cases where 'no status' has been granted emphasises the importance of encouraging your workforce to apply early," she says."Some employers will have a very significant number of EU citizens (and their family members) working for them. The impact of a number of those employees not having permission to work as at 30 June 2021 could be costly and disruptive."Ms McIlroy says by ensuring employees apply as early as possible would, hopefully, allow staff to rectify any issues should the Home Office request further information or were an application to be refused."It will mean that employees may have an opportunity to re-apply (where appropriate to do so) before the deadline of 30 June 2021 without impacting their eligibility to work in the UK," she adds."If an employee waits until close to the deadline of 30 June 2021 before applying and is subsequently refused, they may lose their eligibility to work, with an immediate impact on the individual and their employer. Applicants should also bear in mind that the application process is also taking longer due to Covid-19 delays."

Remote working in a foreign country, even due to the Coronavirus pandemic, could negatively impact application under the EU Settlement Scheme

Because of the pandemic, Ms McIlroy points out that many employees have embraced remote working, with some choosing to work from outside the UK."However, it's important for employers to be aware of the detrimental impact such arrangements could have on employees who will eventually want to apply for settled status under the EU Settlement Scheme."This is because EU citizens and their family must have lived in the UK for a continuous period of five years in order to be eligible to apply for settled status."She emphasises that absences of more than six months in any 12-month period - either in one continuous absence, or multiple, shorter absences together exceeding six months - would break the period of continuous residence required.The six-month rule, however, can be waived if a person is absent for up to a year because of an 'important reason'. Ms McIlroy says it remains unclear if the pandemic meets the 'important reason' test and that "as travel restrictions have eased, it is less likely that such absences will be permitted".

Read more news and views from David Sapsted.

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