Remember the B word? Brexit dominated the national debate until March 2020 when the pandemic swept normal life aside.
Covid-19 has been dominating our professional and personal lives for almost a year. We’ll all be looking to the spring to see if a combination of vaccinations, restrictions and warmer weather will finally turn the tide so that we can focus on more optimistic objectives.
Even then there will be plenty of challenges in the way, not least with the implications of Brexit, especially in the area of school recruitment. March will be the time when most schools begin to look at recruitment for the new academic year, and for those staff members who are from the European Economic Area (a definition that includes EU citizens plus citizens of Iceland, Liechtenstein and Norway) or Switzerland there will be some added complications.
The UK’s withdrawal from the EU was completed on December 31, 2020, but for many schools that employ EEA or Swiss nationals the date of June 30, 2021, will soon loom large.
By that date all schools will need to make any EEA or Swiss member of staff (who began residence in the UK prior to December 31, 2020) aware of the requirements to apply for settled or pre-settled status if they want to continue living in the UK beyond that date.
The rule changes are likely to affect a significant number of staff around the country. According to data from the Office for National Statistics, in the period 2015 to 2017, approximately 12 per cent of school staff in England were born outside the UK, with just over a third of these from EU countries.
If your school has staff members who are EEA or Swiss citizens, they should be applying for settled or pre-settled status ahead of that date. Those with indefinite leave to enter or remain in the UK do not need to apply, nor do British or Irish citizens (though the latter can choose to do so).
For any new workers who arrived in the UK after January 1, 2021, a different process will apply. These workers will not be able to apply for settled or pre-settled status under the EU settlement scheme and will, instead, require a visa under the new immigration system to work in the UK from January 1, 2021, onwards.
The rights and status of EEA and Swiss citizens living in the UK before January 1, 2021, will remain the same until June 30, 2021. So, if the staff member applies to the EU settlement scheme successfully, they can continue to live and work in the UK after June 30, 2021.
These individuals will be given either settled status or pre-settled status. This will depend how long they have been living in the UK at the time of their application and their rights will vary depending on which status they get.
Settled status applies to those who started living in the UK before December 31, 2020, and have lived in the UK for five continuous years (that’s at least six months in any 12 month period, though some exceptions apply). Settled status means they can remain in the UK for as long as they like and can apply for British citizenship.
Pre-settled status is when the individual does not have the requisite five years residence for settled status (they must have started living in the UK by December 31, 2020). If granted, they can remain in the UK for a further five years and can apply for settled status one they have the five continuous years residence, before the pre-settled status expires.
If the individual will reach five years’ continuous residence at some point by June 30, 2021, they can choose to wait to apply until they reach five years’ continuous residence. This means that if their application is successful, they will get settled status without having to apply for pre-settled status first.
If an EEA or Swiss citizen does not take these steps, with effect from July 1, 2021, they will no longer have the right to live and work in the UK and could be subject to immigration enforcement action. And unfortunately that means that continuing to employ them in your school will be an offence.
Provided your staff members were living within the UK by December 31, 2020, they will have until June 30, 2021, to apply for EU settlement.
To support your employees with this process, you may wish to take the following steps:
- Identify those who may be affected by these new rules.
- Inform your staff of the need to apply for pre-settled or settled status (if the rules apply to them). It may be advisable to inform all staff members in case you are unaware of family members for example who may be affected.
- Point them to the government website where they can process their application.
While you’re not obliged to inform your staff of this information and it is for the individual to apply by themselves, letting them know will of course help to protect valued colleagues who may not be fully aware of the looming deadlines.
There are, however, some important lines you absolutely should not cross as an employer:
- Don’t ask individuals if they have applied or what their status/the outcome of their application is. You have a duty not to discriminate against EEA or Swiss citizens in light of the UK’s decision to leave the EU as either a prospective or current employer.
- You should not make an offer of employment, or continued employment, dependent on an individual having made an application.
- Don’t give advice on, or interpret information on, the EU Settlement Scheme provided by the government unless you are qualified to do so.
A quick guide to right to work checks
- Right to work checks can be carried out electronically, by accessing the online portal, or manually, by obtaining, checking and copying original documents from a specific list (set out here. For EEA/Swiss citizens, the easiest way to demonstrate the right to work is with an EU passport or national ID card.
- You don’t need to change how you carry out right to work checks during the ‘grace period’ (January 1, 2021 up to June 30, 2021).
- From July 1, 2021, right to work checks will depend on when the individual became resident in the UK.
- From this date, individuals will either need to evidence their status under the EU Settlement Scheme or show that they have a visa under the new immigration system.
- You will, however, need to change your application forms now. Although schools are not being asked to differentiate between citizens who were/were not resident in the UK by 11pm on 31 December 2020 during the ‘grace period’, this may cause some practical difficulties if it later transpired that a citizen does not have the right to work. Furthermore, it is important to note that if the school knows or has reason to believe an individual does not have the right to work in the UK (e.g. because they began residing in the UK after 11pm on December 31, 2020), this is also an offence.
- To minimise this risk, Vicki’s advice is that schools should add “What date did you become resident in the UK?” to application forms. If the answer is “after December 31, 2020”, get in touch for further advice. Also, remember to provide EU Settlement Scheme details to any EEA/Swiss citizens.
- Further amendments to your application forms (and right to work checks) will be required from July 1, 2021, so look out for further Home Office guidance.
- The government has created a toolkit to support employers, available here.
- Judicium can support schools in amending recruitment documents and help on visa/sponsorship queries and applications. Contact Georgina de Costa at firstname.lastname@example.org for further information.
Georgina de Costa is a senior relationship manager at Judicium Education, a professional services company working with more than 1,700 schools across England. Judicium Education advises on health and safety, HR, legal services, clerking, governance and data protection. www.judiciumeducation.co.uk