The Brexit transition period will end on 31 December 2020. EEA nationals and their family members who are resident in the United Kingdom before that date have until 30 June 2021 to apply to the EU Settlement Scheme (EUSS). In doing so, they will obtain either settled or pre-settled status.

Employers may find it difficult to ensure that they implement their prevention of illegal working duties correctly without breaching discrimination laws, while also offering help and support to their EEA national employees.

The Home Office recently confirmed two points concerning EEA nationals and their family members:

  • The government guidance – which states that employers "should not check that an employee has applied" to the EUSS – does not mean that employers cannot ask whether an employee has applied. The Home Office has clarified that the reason behind this wording is to minimise the risk of discrimination against a person who is eligible but has not yet applied to the EUSS. Therefore, the Home Office uses the word 'check' rather than 'enquire' or 'ask'. The Home Office stated that there is nothing stopping employers from asking individuals whether they have applied to the scheme. However, this must not lead to any form of discrimination against that individual.
  • EEA nationals and their family members who are currently working in the United Kingdom, regardless of whether they have pre-settled or settled status (or no status under the EUSS), are settled workers for the purposes of the Immigration Rules until the end of the transition period. After the transition period, individuals with pre-settled status under the EUSS will be settled workers for the purposes of the Immigration Rules – meaning that Europeans with pre-settled status will have similar rights after the transition period as before.

The offer of support to employees affected by the scheme has been gratefully received. This clarification highlights the consideration required to ensure that an employer hits the right note between competing legal demands and a desire to help.

Employers should seek counsels' help with Brexit-related strategic immigration advice, including applications under the EUSS and preparing for the new immigration landscape, as well as navigating tricky areas, such as dealing with potential discrimination issues which arise during the recruitment process and in the course of employment.