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how will Brexit affect businesses from an immigration perspective?

15 January 2019

We have set out below our advice on some of the most common questions we see surrounding the potential impact of Brexit on employment and business immigration.

These FAQs will be updated as the negotiations progress and further publications are made by the Government.

The business

How will Brexit affect the business from an immigration/migration perspective?

Free movement will come to an end when the UK exits the EU in March 2019.

EEA nationals will either need to apply under the EU Settlement Scheme (see below for further details) or the new immigration system if they want to continue to work and live in the UK thereafter.

On 19 December 2018, the Government published details of this new immigration system.  It is will apply to both EEA nationals and non-EEA nationals, irrespective of nationality.  It will only permit skilled workers, who have a sponsor, to work in the UK. The new system is expected to be implemented in early 2021, following a period of consultation and changes to legislation over the course of the next year or so.  It is possible that some visa routes will be open before then.

This will inevitably result in significant curbs on the ability to recruit EU nationals who enter the UK after we exit the EU. Those businesses with low-paid and low skilled workers are likely to be affected the most (e.g. the construction industry and low-paid work in social care, retail, horticulture and hospitality).

Will EU nationals need a visa to work in the UK?

It depends on when they come to the UK.

Assuming a deal is done, the Government has confirmed that all EU citizens currently living in the UK as at 29 March 2019, and any EU citizens arriving by 31 December 2020, will not require a work visa. Instead, they will be required to apply for ‘settled status’ (the equivalent to Indefinite Leave to Remain) or ‘pre-settled status’, provided that they meet the eligibility requirements.

For those EU citizens who arrive in the UK after 31 December 2020 or who are not eligible under the EU Settlement Scheme, a new visa scheme will be implemented in 2021. Full details of this were published on 19 December 2018. Essentially, the proposals will mean that all skilled migrant workers, irrespective of nationality, will need a UK sponsor and a visa to enter the UK.

Is there anything EU employees can do now to protect their position?

Other than keeping up to date with developments, there is nothing that EU employees need to do at present.

The Government has confirmed that there is no need for EU citizens currently living and working in the UK to prove that they are exercising their EU rights or that they have a current right of permanent residency in order to remain in the UK after Brexit.

Furthermore, the Government has advised that EEA nationals should not apply for permanent residency before the UK leaves the EU, as the Government has confirmed that such documentation will not be valid after Brexit in any event.

In order to be able to stay in the UK, all EU citizens living and working in the UK as at 31 December 2020, will need to obtain a new immigration status, known as ‘settled status’ or ‘pre-settled status’, by applying to the Home Office. This means that EU citizens with permanent residence cards will still need to apply for settled status under the new system when it comes into force. However, the process of applying for settled status will be more streamlined for those EU citizens who already hold permanent residence cards, so they will be at an advantage when the time comes to apply for settled status. The current proposals envisage a simple process to swap their current status for settled status, free of charge.

Provided a deal can be done, the Government hasa confirmed that EU employees will be given until 30 June 2021 to obtain this new status (during which their position in the UK will be protected).  Having said that, they would be well advised to apply when the online application is fully available, as there will undoubtedly be delays given there will be an estimated three million applicants. We are advised that a third phase of the scheme will be open more widely on 21 January 2019 for those who have a valid passport and biometric residence card. The application process will then be fully open to all EEA workers on 30 March 2019.

Those who are eligible can still apply for British citizenship. Becoming a British citizen means that these individuals will not have to apply for settled status when the UK leaves the EU.

How can we recruit from within Europe when we don't know what is happening?

It is still business as usual at the moment. It is unlawful to discriminate against job applicants because of nationality, and on current guidelines right to work checks should only be carried out at the final stages of recruitment. Currently, EU workers still have the right to work in the UK and they should not be refused employment because they are from outside the UK.

How can we attract candidates?

  • Review your policies to make it clear that discrimination against EU migrants will not be tolerated and ensure that this is visibly supported by management.
  • Demonstrate that you are prepared for what is to come by carrying out an audit of your current employees to assess what proportion of your staff might be affected by Brexit and to identify individuals for further communication.
  • Actively discuss with your current EU employees their immigration situation and assist them with finding solutions.
  • Assist current EU employees who wish to apply for settled status/pre-settled status/permanent residence (notwithstanding the fact that this will not have effect after Brexit but could make applying for settled status more streamlined); or British citizenship (if eligible) by providing all relevant advice and documents that you have that may support their application. You can find a toolkit which has been prepared by the Government here.
  • Consider applying for a Sponsor Licence now. The proposed new immigration system will require that all employers wishing to recruit skilled migrant workers after 31 December 2020, will need a Sponsor Licence in order to do so. Current timeframes for such applications are between 8-12 weeks. The timeframes are likely to increase as more and more businesses apply.

The existing employees

Will EEA nationals get to stay if they are already working here?

Yes, qualifying EEA nationals will. The Government has confirmed that, provided a deal is done:

  • EU nationals who arrive in the UK by 31 December 2020 and who have been residing here continuously for five years as at that date, will have the right to apply for settled status. Where settled status is granted, these EU nationals will be free to work / study here permanently. Those with settled status and six years’ continuous residency will then be eligible to apply for British citizenship.
  • EU nationals who arrive in the UK by 31 December 2020 but have not been living here continuously for five years as at that date, will have the right to apply for pre-settled status in order to remain in the UK until they can accrue the required continuous residency to enable them to apply for settled status.

Continuous residency generally requires that the applicant has not been absent from the UK for more than six months in total in any 12-month period. There is to be no restriction on the number of absences permitted, provided that the total period of absence does not exceed six months in any 12-month period.

The Government has confirmed that there will be 3 core criteria that applicants will need to meet in order to apply under the Settlement Scheme:

  1. Proving identity - through a passport, identity card, BRP etc;
  2. Proving residency in the UK for the required period – it is proposed that this is done using data held by HM Revenue & Customs and the Department for Work and Pensions;
  3. Criminality – criminal record checks will be undertaken for any serious or persistent criminals, or anyone who poses a security threat.

The Government has developed a new streamlined online application for those EU citizens that wish to apply for settled status/pre-settled status. This is currently being piloted and will enter a third phase of testing on 21 January 2019. The costs of the application will be £65 (and £32.50 for children under the age of 16). Furthermore, those applying will not have to account for every trip in an out of the UK and will not have to demonstrate that they have held comprehensive sickness insurance to be considered continuously resident.

We are assured that applications will not be rejected on the basis of minor technicalities and that it is expected that the majority of applications will simply be granted. There will also be a right to an administrative/judicial if the application is unsuccessful.

The Government has confirmed that people will be able to apply until 30 June 2021 under the Settlement Scheme. During this time, rights in the UK will be protected. If you apply but haven’t received a decision by this date, you can continue to live in the UK until a decision is made. From 1 July 2021, it will be mandatory for all EEA nationals to either hold settled status or a pre-settled status; otherwise they will need to obtain a visa under the new immigration system which will be implemented in 2021.

Is Brexit likely to affect current UK legislation and, if so, how?

Large parts of UK employment and immigration law derive from EU law. The employment rights within the UK that are purely domestic rights will not be affected by Brexit (for example, the right not to be unfairly dismissed).

In respect of EU law, the Government has introduced the Great Repeal Bill which will automatically convert all EU law to UK law when the UK leaves the EU. This means that there will be no immediate change in the law when Brexit happens, and any laws which the Government wishes to change will need to be repealed/introduced individually.

Therefore, for the time being at least, it is business as usual from an employment perspective. It is anticipated that workers’ rights will be protected and that, in the short term at least, there will be no major changes. Many of the rights set out in EU law are rights that the Government (and most employers and employees) would wish to retain, such as discrimination laws, maternity leave or collective consultation in the context of redundancies. Those rights are now well-established in UK law and any moves to repeal those would be highly controversial. However, only time will tell if there will be any longer term changes.

As regards immigration law, the new immigration system discussed above will be reflected in revised Immigration Rules via a new immigration bill, which is currently going through Parliament. We will continue to update you as and when developments arise in relation to this.

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Employment law update 2019 Birmingham office

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We are pleased to invite you to our annual employment law update. These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR managers and directors.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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