Fragomen – the world’s largest immigration law firm have provided UK Screen Alliance with a blog post of their advice and insight into the implications of a post-Brexit world for EU workers in the screen industries.
As we approach 5 years since the UK voted to leave the EU, Brexit related small talk may be (albeit welcomingly) grinding to a halt. But this does not mean conversations about how to protect your EEA migrant population should meet the same fate.
The EU Settlement Scheme was designed by the government to allow EU, EEA and Swiss citizens present in the UK before the transition period to protect their residence status. You should always consult the law, but at a high level the policy and process are reasonably straightforward. It is available to EU, EEA and Swiss people who were in the UK before 11pm on 31 December 2021 and applications are made on an app and in your browser and for most people will take about 15 or 20 minutes. Only serious foreign criminals should be refused and those with five years residence will be granted Settled Status, normally two weeks later. Those with under five years residence are granted Pre-Settled Status before moving to Settled Status.
The scheme is not only beneficial for those continuing to reside long term in the UK. This generous government initiative has benefits for EEA citizens who travel in and out of the UK frequently, and these can be taken advantage of even now we have left the EU. If there is a possibility that employees might need to return to the UK to work, even temporarily for just a couple of days for work on a film or production, in the next couple of years; encouraging them to apply under this scheme before it closes on 30 June 2021 is going to save you a lot of time and money.
EU, EEA (Iceland, Liechtenstein and Norway) and Swiss nationals can apply now via an app or laptop if they were living in the UK before 31st December 2020. Depending on how long someone has spent in the UK, they will be granted either Settled status (if they have spent a continuous period of 5 years in the UK) or Pre-settled status (If they do not have 5 years continuous residence). An application for settled status after 5 years spent with pre settled status is permitted if eligibility requirements are met.
And the best part is that it’s free.
Employees Living Overseas
There are still benefits to applying even if you are unsure whether someone will be returning to the UK in the near future. There are several ways in which employees who are not currently in the UK, or have not spent much time here, can benefit from this scheme
Relying on a historic 5 year period
Example: A French national has been living in the UK, studying for a period of over 5 years. Provided they have not been absent for a continuous period of 5 years since, they can rely on this period of time to apply for Settled Status. It will just need to be evidenced sufficiently. Course enrolment documents, bills, letters showing their UK address will all suffice. If they were also working, a National Insurance number will help.
Presence within the last 6 months
If an employee was present in the UK for any length of time up to five years in the months leading up to 31st December 2020, they can obtain pre-settled status. They just need to provide a document that is dated less than 6 months old and has their name on it. They can even use a flight ticket confirming entry to the UK, or a stamp in their passport: it’s that easy. A classic example here would be an individual who came into the UK late in 2020 to work on a film shoot or production set – even if they were only present for a few days six months before their application, they would be eligible to apply.
Employees who obtain status under this scheme will be able to travel to, and work in the UK with a lot more ease than those who do not. They will essentially be able to continue to benefit from pre- Brexit free movement. The alternative involves applying for a Skilled Worker visa or other permission, which carries costs of up to £6,000 for a 3 year visa for one person.
Red Flags
Absences
There are some things to look out for here. Understandably during the coronavirus pandemic some employees will have chosen to return overseas to undertake their remote working. Those who hold pre-settled status will need to be mindful of the amount of time spent absent from the UK. Absences for over 6 months in any 12 month period will prevent an individual from going on to obtain indefinite leave to remain after 5 years.
Some absences of up to 12 months can be exceptionally discounted – a loose definition of ‘important reasons’ is given in the guidance, and examples are: pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.
It is also important to note that both pre-settled and settled status can be lost after both 2 and 5 years spent outside the UK respectively.
Coronavirus Concessions
The government have helpfully released some concessions in light of the current coronavirus pandemic. If an employee’s continuous residence period has been disrupted by coronavirus induced restrictions- if they were stuck overseas for example, or in quarantine- this might not affect their qualifying period. In essence, excessive absences can be mitigated if they were directly caused by the coronavirus restrictions in place.
There are also concessions regarding the accessibility of documents that are required to evidence an application – if you can’t produce a passport at the moment for some related reason, the Home Office has introduced flexibility in the guidance so that this may not adversely affect an application.
Non-EU Family Members
It is important to stress that EEA nationals may be able to benefit vicariously from this scheme. It may not be immediately obvious who falls under this category, but it is worth communicating to employees. Even if an employee is not themselves an EEA national, but they are related to someone who is, they may be able to apply if that person was living in the UK last year. The government gives an extraordinarily broad definition of a family member here, so it is worth exploring any familial connections to an EEA national. If they have one, they really, really want to take advantage of this. It will be a whole lot easier and cheaper than applying through the system currently in place for third country nationals.
In short, when the UK government is offering what is essentially a free work visa to your employees, it’s mutually beneficial to do everything in your power to encourage them to apply. It’s unlikely to ever happen again. The above is of course just a summary of the relevant options, we do recommend checking the guidance further or consulting with an advisor for your specific circumstances, particularly if you are relying on a quick trip to the UK six months ago.
Fragomen have created an email drop box through which UK Screen Alliance members can apply for advice. Initial queries that would take no more than 15 minutes to handle (email or call) will be dealt with free of charge, subsequent advice to be charged and members would be made aware when any charges were to arise. Fragomen will also offer a preferential fee arrangement for members.
If you are UK Screen Alliance or Animation UK member, log on to the Members-only Resource Area to access the link.
