EU nationals without settled status may be wrongly denied rights due to ‘buried’ Home Office guidance

EU nationals who have not obtained settled status by 30 June may be wrongly denied housing and jobs due to “convoluted” and “buried” Home Office guidance, business lawyers and landlord associations have warned.

Ministers have been accused of failing to adequately inform employers and landlords of the rules around employing or renting to EU and EEA citizens who have not got EU settlement by the scheme’s deadline, which experts say is likely to lead to individuals missing out on their rights.

The EU settlement scheme opened in March 2019 and required all EU and EEA nationals and their family members living in Britain to apply by 30 June 2021 in order to maintain their rights in the UK after Brexit.

With 10,000 people currently applying to the EU settlement scheme each day and a backlog of over 400,000 pending cases, the department has acknowledged that not all applications will have been processed before the deadline in three days’ time.

It has also acknowledged that there will be people who are eligible to apply but have not done so by the 30 June deadline, due to not being aware of the scheme or not knowing how to make an application.

Ministers say that anyone who applies for the scheme by the deadline but has not yet received an outcome will be issued with a ‘certificate of application’ which they can use as evidence of their status.

The government says that those who have “reasonable grounds” for missing the deadline will also be able to make a late application.

New guidance for landlords and employers published on 18 June states that when an EU or EEA national who has not applied under the scheme attempts to obtain new employment or rent a property in England, the employer or landlord must “encourage them to apply as soon as possible”.

However, Rebecca Hone, immigration solicitor at Clarkslegal, which advises large companies, said the “convoluted” guidance, which was only recently changed, coupled with the “scaremongering” approach towards the deadline, means many employers will be unaware of these new rules.

“You would hope employers will signpost people to the scheme if they haven’t applied after the deadline, but who knows if they will actually do that?” she said.

“Buried in the text of the rules, it explains that if you have an outstanding EU settlement scheme application then that is also sufficient, but the guidance is pages long. How many employers are going to go back and read it?

“Because it’s been so heavily advertised that the deadline is 30 June, a lot of employers will think that is the absolute cut-off date.”

Ms Hone said the rules should be “better publicised”, warning that many employers will otherwise err on the side of caution and people will be refused on the basis of not yet having EU settlement.

“There are a lot of employers who are too scared to risk employing someone who they aren’t sure about, so they might take other options. If there are two candidates and one of them is British and the other has applied to the scheme but only has a certificate of application, if it feels safer to go with the British candidate, who wouldn’t do that?”

One in five small employers has at least one member of staff who is an EU citizen, according to the Federation for Small Businesses (FSB).

Mike Cherry, national chair of the FSB, said that given the “persistent disruption” over the past 15 months, ministers “cannot expect small business owners to take on the responsibilities of immigration officials – rather, they need clear advice, guidance and support in this area”.

“With the deadline only days away, it’s critical that the Home Office proactively reaches out to business owners, freelancers and employees to ensure that everyone knows where they stand,” he added.

Kate Nicholls, chief executive of UKHospitality, echoed these remarks, saying: “We’d urge the Home Office to continue to focus on building awareness among employers of all sizes so that these businesses, and their staff, are not disadvantaged.”

And in terms of housing, a new survey by the British Landlords Association indicates that one in three landlords are not aware of the EU settlement deadline and what it means.

Chief executive of the organisation, Sajjad Ahmad, warned that many landlords could face a financial penalty as a result, as they may fail to check whether EU and EEA nationals have settled status and start illegally renting to someone without valid documents.

In other cases, landlords may wrongly turn away prospective tenants who cannot show their EU settlement because they are unaware of the fact that they can still rent to someone with a pending application or that the individual is allowed to make a late application.

“We have received no contact from the Home Office, and we do feel they should have done a lot more to make the landlords aware of the deadline. The Home Office has been silent on this issue,” Mr Ahmad said.

David Alexander, joint chief executive of property management firm Apropos, said there was “no doubt that many landlords won’t know to signpost people to the scheme”.

“Most landlords won’t understand that they have this duty. It hasn’t been particularly well advertised. I’ve spoken to a number of letting agents and there’s been a vacant look when you ask if they know what they have to do,” he said.

“And you can see how landlords would lean towards the safer option and not rent to people in this position, and people would lose out because of that.”

Luke Piper, head of policy and advocacy at campaigning group the3million, said employers and landlords had “too much responsibility” when it comes to checking status and that the Home Office failed to effectively monitor and regulate these checks.

“It is no surprise that landlords and employers are saying they can’t assimilate new types of checks in complex circumstances, especially when they are introduced at such short notice,” he added.

“This will very likely lead to discrimination and people missing out on jobs and housing which they would otherwise be entitled to. Reform of these checks is urgently needed.”

A Home Office spokesperson said it had “very clearly communicated” with landlords and employers since the launch of scheme, including publishing an employer toolkit detailing the changes, writing to landlords and their representative groups and leading “targeted advertising campaigns” in the lead-up to Brexit.

“There have already been more than 5 million grants of status under the hugely successful EU settlement scheme, and EEA citizens who have submitted a valid application by 30 June will have their rights protected in law,” they added.

“Employers and landlords who discriminate against those with a pending in-time application are breaking the law and we would urge them to familiarise themselves with published guidance and the statutory codes of practice.”