How Employers Can Help EU National Employees with Brexit Uncertainty

In just two weeks, the UK will leave the EU at 11pm on 29 March 2019 by automatic operation of law unless something else happens. It is fair to say that the progress of Brexit talks between the UK Government and the EU have not been easy and there is a real chance that we may exit on 29 March without a deal.

Charlotte Sloan, of Irwin Mitchell, explains…

From an employment perspective, businesses need to consider the impact of a no-deal Brexit on its current workforce, particularly on members of staff from an EU country. Lots of UK businesses and organisations rely on EU workers and there are a lot of questions about whether businesses can continue to engage and recruit EU nationals particularly in the event we leave the EU without a deal. There is also some uncertainty regarding any new immigration rules which will be implemented post Brexit.

Right to work in the UK

Leave with Withdrawal Agreement

The Withdrawal Agreement provides for an Implementation period until 31 December 2020 during which free movement still applies. EU Citizens coming to UK after 29 March 2019 who wish to stay longer than three months have to register.

EU citizens who arrive in the UK by 31 December 2020 and wish to remain in UK after the end of implementation period can apply for settled/pre-settled status until 30 June 2021. The application process for settled status has opened its third phase for testing and will open fully by 30 March 2019. The current application process requires an “app” which is only available for certain android phones so is some room for improvement from a technology perspective! Applications prior to 30 March 2019 still incur a £65 fee which will however be refunded.

No deal – rights of EU citizens already in UK by 29 March 2019

In the event of “no deal” EU citizens and their family members already resident in the UK by 29 March 2019 will be able to remain here. They have until 31 December 2020 to apply to the EU Settlement Scheme to protect their status.

Businesses who already employ EU staff up until the 29 March 2019 may wish to encourage and support their workforce with their applications for settled status.

No deal – rights of EU citizens arriving after 29 March 2019 but before 1 January 2021

In case of a no deal freedom of movement will end at 11.00pm on 29 March 2019.

EU nationals wishing to stay in the UK for more than three months will have to apply for European Temporary Leave to Remain. This will allow them to live, work and study in the UK for a period of three years from the date of their application.

If EU citizens want to stay in the UK for more than three years, they must then apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021. Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.

Proposed immigration rules from 1 January 2021

The White Paper on Immigration was finally published in December 2018. It provides an outline of what government policy will be. As expected, it will put in place what it describes as a “flexible” skills based system which favours highly skilled workers. There is currently no guarantee whether the Government’s White Paper will become law, but currently it is understood that the Government intends to implement the following immigration system from 1 January 2021:

A single system will replace existing immigration rules

Free movement will end. EU citizens will be treated in the same way as anyone else wanting to come to the UK to work or study.

The government intends to remove the annual cap on the numbers of visas it issues (which has caused significant delays) and will widen the skills threshold to include people who hold qualifications equivalent to A levels. The government says this will make sure “the brightest and best” can come to the UK and “employers have access to the skills that add most value to the UK economy.”

Labour market test will be abolished

Currently, if you wish to employ non-EU (migrant) skilled staff you will need to obtain a Tier 2 sponsorship licence and, unless the job is on the shortage list of occupations, comply with the Resident Labour Market Test.

The government has said that employers with a Tier 2 sponsorship licence won’t have to comply with the Resident Labour Market Test from 2021. The system will be designed to be as “straight forward” and “light touch” as possible. Whether this will be the case, remains to be seen.

Minimum salary requirements are not yet settled

Who is regarded as a highly skilled worker depends on the salary. The Migration Advisory Committee recommended £30,000 but many businesses think this is too high. To put it into context, newly qualified nurses and junior doctors would not meet that threshold.

Low skilled workers

Low skilled workers from outside the UK will only be able to work here on a temporary basis to cover labour shortages in specific sectors. The White Paper refers to construction and social care. Low skilled workers will be able to work here for a maximum of 12 months (with a further “cooling off” period of 12 months) and will be able to move between employers during that time. However, they will have no right to access public funds, no right to stay longer or lead to permanent settlement, no right to switch routes and no right to bring dependants

The government says it will work with key sectors to help facilitate the change needed to reduce demand for low skilled migrant labour going forward – but it is clear that many sectors will struggle to fill vacancies if they do not have a ready supply of EU labour.

 

What next?

It is unfortunately very much a waiting game. We do not currently know if the European Union and the Government will reach a deal, but a no deal is looking a possibility. If a no deal Brexit goes ahead on 29 March 2019, businesses and their employees need to be prepared for the next steps and the (potential) new immigration system.