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how will Brexit affect businesses from an immigration perspective?

27 March 2018

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?

The Government say that they are committed to securing the position of EU workers in the UK (and vice versa) but that free movement will come to an end when the UK exits the EU.

This, combined with the Government’s commitment to significantly reduce net migration, will inevitably result in curbs on the ability to recruit EU nationals who enter the UK after we exit the EU. Those businesses with low and middle skilled workers are likely to be affected the most (e.g. skilled trades in the construction industry and low-paid work in social care, retail, horticulture and hospitality).

However, for those EU citizens who are already resident in the UK as at 29 March 2019, the Government has confirmed that they have agreed measures to facilitate their stay post-Brexit. Those arriving between 29 March 2019 and 31 December 2020 (known as the Implementation Period), will be permitted to stay in the UK on the same terms but will be required to register if they want to stay for more than 3 months. We explore how this is proposed in further detail below.

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

The Government has confirmed that all EU citizens currently living in the UK, and any EU citizens arriving by 29 March 2019 , 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. Any EU citizen arriving in the UK between 29 March 2019 and 31 December 2020, will be permitted to stay in the UK on the same terms but will be required to register if they want to stay for more than 3 months We have set out below further details on this.

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 can 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 29 March 2019, 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 Government has stated that it will seek to make the process of applying for settled status 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.

Whilst the Government have 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), they would be well advised to apply as soon as it becomes available, as there will undoubtedly be delays given there will be an estimated three million applicants. The Government are currently proposing to set up a voluntary application process before we leave the EU to try and manage this challenge. We will update you if and when this becomes available.

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 may wish to consider applying for a Tier 2 Sponsor Licence. The current rules regarding sponsors cover non-EU citizens only and we have no certainty about the future rules, but if you were considering a Licence in any event, the fact that an employer can demonstrate that they can comply with the requirements and obligations for a Sponsor Licence may assist with future applications (if needed) to employ EU workers post Brexit.

The existing employees

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

Yes, qualifying nationals will. The Government has confirmed that:

  • EU nationals who  arrive in the UK by 29 March 2019 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. 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 29 March 2019 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.
  • EU nationals who arrive in the UK between 30 March 2019 and 31 December 2020, will be able to stay in the UK on the same terms but will need to register if they choose to stay for longer than 3 months.  Details of the registration process are yet to be confirmed.

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:

  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 confirmed that they are developing a new streamlined online application form for those EU citizens that wish to apply for settled status/temporary residency. We are told that a phased roll-out will commence towards the end of this year. 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.

The Government has confirmed that there will be a grace period of up to two years after we leave the EU to obtain this status. The Government has confirmed that people will be able to apply until 30 June 2021. 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. 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 be granted. There will also be a statutory right of appeal if the application is unsuccessful.

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 individually. Therefore, for the time being at least, it is business as usual from an employment and immigration law 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.

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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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