Since 1 July 2021, all free movement laws which previously applied to EEA citizens in the UK stopped applying. Those who applied to the EU Settlement Scheme (EUSS) by 30 June 2021 can retain their previously acquired residence rights when they get pre-settled or settled status. EU citizens who did not apply to the Settlement Scheme by 30 June are now unlawful residents in the UK. What does this mean, and can it be remedied?
Those with pre-settled or settled status, as well as those who have made an application to the Scheme in time and are still waiting for a response, retain their rights. This means that they can live, rent, work and stay in the UK indefinitely if they have settled status, and for five years if they have pre-settled status (which may later be upgraded to settled status.)
Additionally, proof of application before the deadline of 30 June 2021 guarantees EEA citizens the same rights as proof of (pre-)settled status, even if the application has not been concluded or decided yet. In other words, people with a pending application submitted before the deadline retain all their residency rights whilst awaiting the final decision.
Those EEA citizens in the UK without status under the EUSS and who have not applied by the deadline, on the other hand, are unlawful residents: they do not have legal status to be and remain in the UK. This means that they do not have access to public funds such as benefits, even if they were previously entitled to them. Unlawful residents cannot work or rent in the UK, nor can they access all health treatments or NHS services. They are also technically liable for removal from the UK, though the Home Office have said that this will not immediately be enforced against EEA citizens.
Thus, from 1 July 2021 onwards, employers are required to check that their EEA citizen employees have the right to work in the UK. Similarly, landlords will have to ask for proof of residency status before renting to EEA citizens. In these scenarios, the only valid proof of residency is settled or pre-settled status for those EEA citizens who moved to the UK before 30 December 2020, or another visa (e.g. a Skilled Worker Visa) under the points-based system for those who moved to the UK after 1 January 2021. Old EU residency cards and derivative residency are no longer accepted as valid proof – all EEA citizens eligible for the EUSS must show proof of status under the Scheme, or if the outcome of their application is pending, they must show proof of application.
EEA citizens eligible for the EU Settlement Scheme who failed to apply by the 30 June deadline may still submit a late application if they have “reasonable grounds” for their tardiness. Reasonable grounds are not clearly defined, but should normally be interpreted flexibly. Once a late application is submitted and the applicant is waiting for a response, they receive certain protections until they know the outcome of their application. Existing tenancies and employment contracts may thus be protected.
Home Office guidance for employers carrying out right to work checks states that those EEA citizens who are already in employment but who have missed the deadline should not immediately be fired; rather, the employer must issue them a warning to apply for the EUSS. If they then do so within 28 days, the employer can keep the EEA citizen employed whilst they await the result of their late application with no repercussions and in compliance with the rules. This temporary protection mechanism will be in place until 31 December 2021.
For landlords, there is no requirement to carry out retrospective checks on EEA citizens who entered into a tenancy before 30 June 2021. It is only new tenancies with prospective EEA citizens which require the landlord to fulfil immigration checks. Landlords are encouraged to inform EEA citizens they should apply to the Scheme should they come across anyone who has not done so yet.
Concerning access to NHS services, EEA citizens can register with a GP and receive primary NHS care free of charge regardless of their immigration status. To access secondary care free of charge, they must be considered “ordinarily resident” in the UK. The easiest way to prove that one is “ordinarily resident” is by showing proof of status under the EU Settlement Scheme. Those who are waiting for the outcome of their EUSS application submitted before the 30 June deadline will similarly remain entitled to free secondary care until the outcome of their application is known. The general rule for those EU citizens without settled or pre-settled status after 1 July 2021 is that they are not considered “ordinarily resident” and therefore not entitled to secondary care free of charge. Rather, they will be charged 150% of the NHS tariff for services received. Similarly to protection frameworks for landlords and employers, those who make late applications for the Scheme will be protected during the time period between the submission of their application and the resolution of the application, so that they will not be charged for any care during that timeframe. If the applicant receives settled or pre-settled status, they remain non-chargeable from the date on which the late application was made. Charges incurred before the late application was submitted, however, will still apply.
Importantly, EEA citizens who have missed the 30 June 2021 deadline should still apply for the Scheme. If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.