Recently, we had the opportunity to speak to a group of HR professionals about Brexit and its possible effects on business immigration. Given that:
- the revised date of Brexit has now passed and the UK is currently due to leave the EU on the
12 April31 October unless the Government's Withdrawal Agreement is passed or something else happens before that date; and - as yet, no withdrawal deal has been approved by MPs;
this meant there wasn’t an awful lot of certainty as to what the future holds.
Those attending the meeting expressed concern about how the lack of certainty arising from Brexit is already affecting their businesses from a business immigration perspective. Some were already experiencing a reduction in the number of EU citizens applying for work in the UK, as well as the loss of a number of employees as they returned to their home countries. However, it is still business as usual for now. It is unlawful to discriminate against job applicants because of nationality. 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.
Another question raised was whether they needed to change the way they carry out "right to work" checks for EU candidates and existing staff, particularly if the UK leaves the EU without a deal. The Home Office published advice on 1 April 2019 which confirmed that you won't have to make any changes to the way in which you conduct right to work checks, provided these comply with the existing codes of practice on the prevention of illegal working (last updated on 28 January 2019).
Specifically, you don't need to differentiate between EU, EEA and Swiss citizens and their family members who were resident in the UK before or after the UK leaves the EU.
- Irish citizens will continue to have the right to work in the UK and prove their right to work as they do now, for example using their passport.
- Until 1 January 2021, EU, EEA and Swiss citizens will continue to be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card.
- Alternatively, they can use the Home Office online service if they’ve been granted status under the EU Settlement Scheme. You can view their status through the Home Office online service once they’ve given you their date of birth and unique share code. You’ll need to keep a record of this check.
It is important to note that you don't have to check whether your existing employees have status under the EU Settlement Scheme.
- 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.
- Until now, you haven’t had to do much more than an initial right to work check for your EU/EEA employees. However, this is the time to actively discuss with your current EU employees their immigration situation and supporting them to find solutions, including making applications for settled/pre-settled status, permanent residence or even British citizenship. This can be done by providing all relevant advice and documents that you have which may support their application. You can find a toolkit which has been prepared by the Government here.
- 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.
- Prepare 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 and to offer support.
- If you don’t already have one, you may want to apply for a Sponsor Licence. However, HM Government’s White Paper of December 2018: The UK’s future skills-based immigration system sets out new provisions, including the removal of the annual cap on the number of visas it issues, widening the skills threshold to include those holding qualifications equivalent to A levels, and abolishing the Resident Labour Market test. It has also been suggested that employers without sponsorship licences who want to recruit skilled workers from outside the UK will be able to do so without a licence.
If you have any questions, please don’t hesitate to contact Buckles’ Employment/Business Immigration team.
