The Independent Monitoring Authority for the Citizens Rights Agreements (CRA) have recently issued court proceedings against the Home Office in relation to elements of the EU Settlement Scheme (further information can be found here). Specifically, they are arguing that the fact that citizens who fail to apply for settled status before expiry of their pre-settled status may automatically lose certain rights, is unlawful under the CRA.
It is estimated that there are 2.485 million individuals with pre-settled status who will need to 'upgrade' this to settled status over the next few years – this will usually be done when they have 5 years continuous residence in the UK under the requirements of the scheme. Certain stakeholders have raised concerns about this process, arguing that some individuals may forget to upgrade their status before the expiry of their current leave, which would lead to them losing some of their rights in the UK (including, potentially, their ability to work in the UK).
This challenge may result in a finding that there needs to be some further arrangements in place to preserve their rights, however that remains to be seen. In any case, any decision on that is likely to be some time away while the court process plays out. In the meantime, employers should be aware of this potential risk and there are steps employers can take to encourage any of their employees with pre-settled status to upgrade their status as soon as they are able to, in order to ensure that they can continue working for them.
Employers may want to consider:
- Diarising ahead for the expiry of pre-settled status for staff. Employers having oversight over this allows them to speak with impacted staff and encourage them to apply before their current status expires. Employers may want to bring it to the attention of their impacted staff that they are able to update their status in the UK as soon as they meet the 5-year residence requirements – they do not need to wait until the 5 year period granted under their pre-settled status has lapsed if they meet the settled status requirements sooner than that. Updating their status as soon as they are eligible to is the best way to protect their rights in the UK.
- Signposting impacted employees to the relevant, up to date government guidance on upgrading EU Settlement Status. Information on this can currently be found here. Please note that it is up to the employee to apply to upgrade this, employers cannot do this on behalf of the employee and employers should not give immigration advice to employees (given the tight regulation of this in the UK), only signpost staff to up to date information.
- Ensuring an up to date right to work check is undertaken before the employees pre-settled status expires. Failing to do so may mean that an employer does not have a statutory excuse (defence) to an illegal working penalty if it transpires that the employee does not have a right to work in the UK. Follow-up right to work checks should be diarised and conducted in line with the most up to date right to work guidance which can currently be found here
Employers signposting or consulting government guidance should always ensure they use the most recent guidance available on the website. The information contained in this document is accurate as of 26th January 2022.