Employer advice: The EU settlement scheme and the UK's new immigration policy

More recently, the ‘grace period’ - initiated by government to smooth the changeover and allow people living and working in the UK before 31 December 2020 more time to apply to the EU Settlement Scheme - also came to an end, on 30 June 21.

While this was the deadline given by government for applications to the scheme, late applications are still possible in some cases, as discussed below in our FAQs and covered in more detail by the resources in our resource list. 

Frequently asked questions

These FAQs cover existing workers; new workers for permanent labour needs; seasonal labour needs and right to work checks. Click on the question links below for advice:

Existing workers and the EU Settlement Scheme

• What is the EU Settlement Scheme and how does it help retain EU/Swiss workers I employ?
• What is settled and pre-settled status and who is eligible?
• When does a worker need to have been in the UK by to be eligible for the EU Settlement Scheme?
• When was the deadline to apply for the EU Settlement Scheme and what happens if the deadline has been missed?
• How does a worker apply?
• Can a worker apply from abroad?
• Can I apply on my workers' behalf?
• How does the home office approach disruption caused by Covid19 and its potential impact on EUSS applications?  

New Workers - Permanent Labour Needs

• How do I access new entry level workers using the new immigration system?
• How do I access new Medium to High Skilled Workers using the new immigration system?
• How does the PBS work?
• If I want to use the PBS, what level of English speaking would any potential recruit need to have?
• How much does the PBS cost to use?
• How viable is the PBS for businesses within agriculture and horticulture?
• How do you become a sponsor under the PBS? 

Seasonal Labour Needs and the Seasonal Worker Pilot

• How do I source seasonal workers? 
• What is the Edible Horticulture Seasonal Worker Pilot and where can I get more information?
• Do I need to become a sponsor to source seasonal workers?
• Would the Youth Mobility Scheme offer an alternative route for sourcing workers?
• I have heard of the frontier worker permit, is this something that could be used in respect of seasonal workers?
• Can EU residents travelling to the UK on holiday work for a short period of time while here?

Right to Work Checks

• What are right to work checks and when should I complete them?
• How does the EU Settlement Scheme and end to freedom of movement specifically impact right to work checks for EU and Swiss Nationals?
• What happens if I carried out correct right to work checks during the grace period but discover that a EU, EEA or Swiss worker who I employed before 30 June 2021 does not have the legal right to work in the UK?
• What are the NFU’s asks in respect of the new immigration system?

What is the EU Settlement Scheme and how can it help retain EU/Swiss workers I employ? 

The government put in place the EU settlement scheme (EUSS) to allow those who were living and/or working in the UK before the UK fully left the EU, along with their dependants, to remain doing so if they wished. The scheme was designed for people to access without legal help and for free. Under the scheme, successful applicants can (subject to passing criminality checks) gain one of two statuses: settled and pre-settled status.

The deadline for the scheme was 30 June 2021 but those who can show reasonable grounds for having missed the deadline can still apply and immigration enforcement processes for affected individuals will, now that the deadline has passed, include a preliminary stage where enforcement officers will issue a ‘28 day notice for the EU Settlement Scheme'. This will advise the individual to take urgent action to establish their lawful status by making a late application to the EUSS within 28 days of the issue of the notice. The notice will also provide contact details for the EU Settlement Resolution Centre (SRC); information on how to make an application; and details of support services, including technical assistance and translation. While applications are being decided, no further enforcement action will be taken.

What is settled and pre-settled status and who is eligible?

Full settled status means someone can remain living and working in the UK indefinitely, and pre-settled status means they have a period of five years from the date of their application to live and work in the UK and work towards acquiring full settled status.

To gain full settled status, an applicant needs five years' continuous residence in the UK (ie. the worker has been living here for at least six months in any 12-month period). To gain pre-settled status, an applicant must have resided in the UK before 11pm on 31 December 2020 (for any period of time – there is no minimum period) and not have broken what is referred to as their ‘continuity of residence.’

Continuity is generally preserved as long as the person has not been absent from the UK for more than six months in total (either in a single period of absence or more than one period) in any 12-month period, though there are some exceptions for longer absences, eg. where the absence can be connected to a recognised ‘important reason’ or due to the impact of COVID-19.

Applicants must provide evidence of residence. See Gov.uk for examples of evidence that can be used to prove residence.

When does a worker need to have been in the UK by to be eligible for the EU Settlement Scheme?

Under the EU Settlement Scheme, only an EU or Swiss national who was resident in the UK before 11pm on 31 December 2020 has potential eligibility.

NB For those joining family members already in the UK, the family member they are joining must have been in the UK by this point and either have or be eligible for status under the EU Settlement Scheme.

When was the deadline to apply for the EU Settlement Scheme and what happens if the deadline has been missed?

The deadline for applications to the EU Settlement Scheme was 30 June 2021. While this deadline has passed, an individual who has failed to make an application in time can still make a late application. If they do so, the caseworker who considers their application will review the case to see if the individual has reasonable grounds for making their application late. For more information on this and for illustrative examples of what counts as reasonable grounds, see relevant sections within this caseworker guidance. 

NB As indicated above, immigration enforcement processes for affected individuals will, now that the deadline has passed, include a preliminary stage where enforcement officers will issue a ‘28 day notice for the EU Settlement Scheme'. This will advise the individual to take urgent action to establish their lawful status by making a late application to the EUSS within 28 days of the issue of the notice. The notice will also provide contact details for the EU Settlement Resolution Centre (SRC), information on how to make an application, and details of support services, including technical assistance and translation. While applications are being decided, no further enforcement action will be taken.

In a similar vein, an employer who discovers that an employee taken on before 30 June 2020 might have been eligible but has failed to apply will be able to continue employing them while they make a late application to the EU Settlement Scheme. For more information on this, see the section on right to work checks below.

How does a worker apply? 

Gov.uk has detailed information on how to apply, which has been translated and is available to potential applicants here.

Can a worker apply from abroad?

Yes, while the main 30 June 2021 deadline for the EU Settlement Scheme has passed, applications can still be made both from within the UK and from abroad. 

Can I apply on my workers' behalf? 

No, while employers may well have encouraged and supported workers with applications, including providing employer letters as part of the supporting evidence, applications are made by the individual and it is ultimately an individual’s choice as to whether they wish to apply.

How does the home office approach disruption caused by Covid-19 and its potential impact on EUSS applications?

The government have allowed flexibilities to address these issues as detailed, here.
 

How do I access new entry level workers using the new immigration system? 

The new immigration system does not have a general route for entry level workers (sometimes referred to as ‘low skilled’ workers). 

NB. The extended seasonal workers pilot scheme which will be discussed below is not a general route and is currently only applicable to edible horticulture.

How do I access new medium to high skilled workers using the new immigration system? 

The main work based immigration route under the new system is the new ‘points based system’ (PBS) for medium to high skilled workers. 

Only roles in the following agricultural and horticultural SOC codes (essentially SOC codes are groupings of job titles) are recognised as eligible for the PBS:

Code 1211: Managers and Proprietors in Agriculture and Horticulture
Code 5111: Farmers 
Code 5112: Horticultural Trades 

If you want to check a particular job title to see if it falls within one of these eligible SOC codes, you can use this ONS tool.

As there are a number of other SOC codes relevant to agriculture and horticulture, this means that only some of the roles needed within agriculture and horticulture are eligible. It’s sponsored nature also makes it best suited to permanent roles and there are a number of other barriers that impact on its viability for our industry. See below for more information on the PBS.

How does the PBS work? 

To come for work under the PBS, a worker must acquire 50 points from having a job offer from an employer that has registered as a PBS sponsor. The job offer must be for a role recognised as being at the right skill level and the worker must be able to speak English to the required standard. A further 20 points must then be gained for the worker to be eligible. As doctorate level qualifications (PHDs) are not seen as relevant to any agricultural or horticultural occupations; and no agricultural or horticultural occupations are currently listed as shortage occupation list roles, there are only two ways in which an applicant can get the remaining points. Either they must earn over £25,600 (this being the relevant salary threshold for all agricultural and horticultural roles that are within the scope of the PBS) or they must be a new entrant earning at least £20,480. There is a very specific and quite technical definition for the term ‘new entrant’ under which there are four different ways to qualify as a new entrant. Of these four ways, the most likely to have relevance for Agriculture and Horticulture are:  
•    being under 26 years old; or 
•    having switched to the PBS from a Student or Graduate route.

If I want to use the PBS, what level of English speaking would any potential recruit need to have? 

To be eligible, a worker must demonstrate English speaking ability at AS Level or equivalent either by:  
•    being a national of a majority English speaking country;   
•    having an academic degree taught in English;  
•    having shown they meet the required level of English in a previous successful immigration application; or
•    passing a secure English language test. 

The first three bullets are not applicable to the typical migrant worker coming into our sector - most current migrants have come from non-English-speaking EU countries under freedom of movement so have not had to use the immigration system before and are unlikely to have studied a degree in English. Given that such workers typically speak a basic level of English, passing a secure English language test at AS Level is therefore likely to represent a significant barrier. 

How much does the PBS cost to use?  

Cost to migrant

• Visa fee, up to 3 years: £464 – £704; over 3 years - £928 – £1,220 
• Immigration Health Surcharge payable: £624 payable for each migrant and dependant
• Maintenance: Sufficient means to support themselves and their dependants/employer underwrites ability to do so. 

Costs to employer sponsor

• License Fee for being a Sponsor: £536 - £1,476 
• Fee for each Certificate of Sponsorship issued to a migrant: £199 
• Immigration Skills Charge: £364 - £1,000 for one year plus £500 for every six months in addition
• Maintenance: Employer may need to underwrite migrant's ability to maintain themselves and their dependants. 

NB Employers are advised to check up-to-date fees as these fee levels may vary.

How viable is the PBS for businesses within agriculture and horticulture? 

It will be for each individual business to assess how viable the PBS is, however, the following factors make it likely that for most businesses, the PBS will not be a particularly effective way of sourcing workers in future: 
-    Many roles are ineligible for the PBS as they are not seen as skilled enough – see 'How do I access new medium to high skilled workers using the new immigration system?'
-    Comparative to freedom of movement, the PBS is very costly for both employer and migrant. See 'How much does the PBS cost to use'
-    Being a sponsor and complying with sponsorship requirement will entail related processes and duties
-    The required English level and related evidence of it will be a barrier for those migrants typically interested in roles within our sector – see 'If I want to use the PBS, what level of English speaking would any potential recruit need to have'
-    Even with tradeable points and a reduced salary threshold, earnings requirements may be an issue. See 'How does the PBS work?'.

How do you become a sponsor under the PBS?  

Information on this is available on Gov.uk.

How do I source seasonal workers?  

There are generally going to be three main sources of seasonal labour now freedom of movement has ended. These are:

1. Existing returnee seasonal workers with settled or pre-settled status under the EU Settlement Scheme discussed above. NB Read more information on how the EU Settlement Scheme can have relevance for seasonal workers. Note that seasonal workers are less likely to qualify for full settled status and if they only have pre-settled status, their ability to work in the UK may lapse within the next five years if they do not fulfil criteria for full settled status within this period.
2. UK resident workers. NB See our member-only briefing on the work we have been doing with the DWP to help with residential recruitment.
3. The Seasonal Worker Pilot scheme. CURRENTLY EDIBLE HORTICULTURE ONLY.

What is the Edible Horticulture Seasonal Worker Pilot and where can I get more information?

The Seasonal Worker Pilot was launched in 2018. On 22 December 2020 the government announced that the pilot scheme would be extended for 2021, with a further increase to 30,000 visas for overseas workers to travel to work on UK farms in the edible horticulture sector.

Within the extended pilot, there are four operators – AG Recruitment and Management; Concordia; Fruitful Jobs and Pro-Force – licensed to manage the available visas. While a permanent scheme including areas outside of edible horticulture has been a long-standing NFU ask, the rules of the pilot for 2021 remain unchanged from previous years, and as it stands the scheme is only available to edible horticulture.

Nonetheless, the extension, increase in permits and additional operators represent a positive and welcome step for the industry and something we will continue to try and build upon. You can find more information on the pilot on gov.uk. Plus, read a short NFU briefing on the pilot.

Expansion of the scheme's scope to ornamentals and seasonal poultry sectors is covered below in the section on NFU Asks, below. 

Do I need to become a sponsor to source seasonal workers?

No. Resident workers and those who have/are eligible to gain status under the EU Settlement Scheme do not need to be sponsored. Likewise, for those operating within edible horticulture, it is the labour provider scheme operators listed above that act as the sponsor. Each of the operators is effectively the sponsor.

Would the Youth Mobility Scheme offer an alternative route for sourcing workers? 

The YMS is not primarily a work route but it does provide a temporary route for 18-30 year olds from participating countries, to come and live, work and travel in the UK for up to two years. YMS arrangements currently exist between the UK and Australia, Canada, Japan, Monaco, New Zealand, Hong Kong, Republic of Korea and Taiwan, as well as covering anyone who is a British Overseas Citizen, British Overseas Territories Citizen or British National (Overseas). Migrants coming under this route must:

• have a set amount of savings that have been held in their bank account for at least 28 days (set to rise to £2,540); 
• pay the visa application fee (£244 as of July 2020 but subject to change); and
• pay the immigration health surcharge if staying for over six months (£470 per year or £940 for a two-year visa).

It is not linked to a particular employer or even to a particular sector, does not cover any countries from which workers have traditionally come to the UK for work in agriculture and horticulture, and requires a significant amount of savings for an individual. Consequently, unless and until it is expanded and even then, maybe only if alterations were made to the design of the scheme, it is unlikely to represent a key route either for seasonal or permanent labour in the industry.

I have heard of the frontier worker permit, is this something that could be used in respect of seasonal workers? 

Given the description of the frontier worker permit on gov.uk and in government guidance, it has been speculated that this route could be used by seasonal workers. NFU has raised this suggestion with Defra and they in turn with the Home Office.

The response that has come back is that the Frontier Worker Permit scheme was designed more for use for people who lived in the EU but who commuted into the UK for work on a regular basis (e.g. hauliers; travelling engineers etc). With regard to this, they have highlighted that the underlying regulations that underpin the Frontier Worker Permit refer to a worker needing to have worked continuously before 11pm on the 31 December 2020. In their view, this requirement would not be applicable in the case of a seasonal worker as they would at the end of each season have ended their contract.

The underpinning regulations do contain exceptions for certain periods of unemployment, however, whether or not these would apply in an individual case will vary and though there is no express exclusion of seasonal workers, it is by no means a straightforward route to apply to the seasonal worker context. Furthermore, it is not possible to rule out amendments being made by government to the underlying regulations if the route is used for purposes for which it was not really intended.

Can EU residents travelling to the UK on holiday work for a short period of time while here?

Unfortunately EU residents who come to the UK on holiday and who do not have EU Settlement Scheme status, or any other form of work-based immigration status, will be unable to work on farms for any duration of time. 

What are right to work checks and when should I complete them?

Right to work checks remain part of an employer's legal obligation when taking on new employees and should be carried out for all employees, regardless of their origin, before employment starts. They should be carried out on all applicants at the same point during the recruitment process to avoid discrimination.

Employers can face a civil penalty of up to £20,000 for each employed illegal worker who does not have the right to work in the UK and where correct checks were not undertaken.

How does the EU Settlement Scheme and end to freedom of movement specifically impact right to work checks for EU and Swiss Nationals?

Employees taken on before 30 June 2021

During the grace period from 1 January to 30 June 2021, right to work checks remained largely unchanged from what was required before freedom of movement ended on 31 December 2020 -– save there was the additional option for someone with biometric documentation or EU Settlement Scheme status to choose, if they wished, to prove their eligibility to work by using the online gov.uk tool for right to work checks.

While the grace period has now ended and right to work checks have changed (see below), there is no requirement on employers to undertake a repeat check on EU, EEA, or Swiss citizens who entered their employment before 1 July 2021. Employers will maintain a continuous statutory excuse against liability for a civil penalty if the original check was undertaken in line with legislation and guidance at the time.   

Employees taken on 1 July 2021 onwards

From 1 July 2021, the Home Office has confirmed that employers can no longer accept the passports or ID cards of EU, EEA, or Swiss citizens as valid proof of right to work.

Updated guidance on how to conduct a right to work check from 1 July 2021 is available on Gov.uk.

In most cases, employers will be able to check right to work for an EU, EEA or Swiss Citizen very simply via the online checking service. To do so, an employer will need the applicant’s date of birth and their share code, which the applicant will have generated online. In some cases, however, a manual check may still be needed for EU, EEA or Swiss Citizens. More detail on the exceptions where the online checking service isn’t available and what is needed in each case is available in Annex B of this Home Office guidance.

As you can see from this guidance, in the case of most of the exceptions, where the online checking service is unavailable employers will still need to have Home Office centrally verify a worker's right to work, albeit via the separate Home Office Employer Checking Service.

What happens if I carried out correct right to work checks during the grace period but discover that a EU, EEA or Swiss worker who I employed before 30 June 2021 does not have the legal right to work in the UK? 

Normally, if you discover a worker does not have the legal right to work in the UK, you would need to follow the appropriate employment processes to dismiss them. However, the government has put in place a transitional measure up until 31 December 2021 to allow employers in this position to act more proportionately and instead direct their worker to apply to the EU Settlement Scheme within 28 days.

The worker would need to do this and confirm to the employer that they have made their application. Having applied, the worker will have been issued with either an EUSS Certificate of Application (CoA), or an EUSS email (or letter if they submitted a paper application), confirming receipt of their application.

As a result, the employer will then be able to use the Home Office Employer Checking Service to request a right to work check. They will provide the employer with a positive verification notice, which should then be retained along with a copy of the individual's certificate of application or evidence of application, and a copy of all paperwork relating to the initial right to work check carried out when you first employed them prior to 30 June 2021.

A repeat check or checks will be needed via the Employer Checking Service, as the person's ability to stay in the UK for work will only be clear once their application has been decided.

If a worker did not make an application within the 28 day period, or their application was unsuccessful, then the employer needs to take steps to dismiss them. As noted above, dismissals must be carried out appropriately using correct employment procedures and any employer in this position may wish to call NFU CallFirst on 0845 845 8458.   

What are the NFU’s asks in respect of the new immigration system?

Permanent workforce needs

The NFU would like to see:

• Targeted amendments to the PBS to recognise that value to society and prescribed skill level are not necessarily the same thing. The government could:
  • Exempt evidenced entry level shortage roles in strategic sectors such as agriculture and horticulture from the skills threshold; or
  • make provision for a temporary work visa of at least two years to allow workers to enter the UK to carry out work in entry level shortage roles within strategically important sectors.
• Sector skills shortages recognised on the Shortage Occupation List. 
• Timely delivery on government commitments to make the process of applying for and being a sponsor under the PBS as user-friendly as possible for businesses, including SMEs and microbusinesses.
• Reduction of the costs associated with the PBS to make it more viable and accessible to our sector. 
• Removal of the Immigration Skills Charge for employers and reform of the Immigration Health Surcharge to make it payable by instalments and therefore more manageable for migrants.
• Revision of the level of English needed for eligibility to reflect that basic English skills can be further developed through living and working in the UK.

Seasonal workforce needs

The NFU’s asks in this area are for:

• The extended pilot for edible horticultural seasonal workers to become a permanent scheme.
• The pilot to be expanded to areas of production outside of edible horticulture, including ornamentals and seasonal poultry.
• permit numbers for the scheme to be closely monitored and scaled up to meet overall workforce requirements if required to meet demand.
• Additional operators to be added to complement the existing four.
• Provision to be made for direct recruitment of pilot workers by GLAA licensed businesses, where appropriate.
• Expansion of the Youth Mobility Scheme to EEA countries such as Romania and Bulgaria, with caps on permit numbers set sensibly and consideration given to making available a new mechanism within such schemes to allow employers to underwrite the maintenance requirement.