10th November 2017
The effect of Brexit on business immigration
There are an estimated 3.2 million EEA nationals in the UK and many employers rely on EEA workers as part of their workforce. The UK’s decision to leave the EU has, therefore, caused a great deal of uncertainty for employers in respect of their obligations to their current EEA workers, their ability to recruit such workers going forward and what will happen when we leave the EU?
It is important to note that at this stage nothing has changed. EEA passport holders, those holding EEA residence cards and their family members already in the UK can continue to work and travel freely until we leave the EU. However, those employees who have been living and working in the UK for at least 5 years may want to apply for permanent residency in order to have some certainty of their status going forward.
In terms of the status of those EU workers in the UK who are not currently eligible for permanent residency, the following is proposed:
- Those who have five years residency before the “specified date” will need to apply for a new “settled status”. The “specified date” has not yet been confirmed but will be between 29 March 2017 and when we leave the EU.
- Those who arrived in the UK before the “specified date” but do not have five years residency can stay until they complete five years and then apply for “settled status”.
- Those who arrived in the UK after the “specified date” but before we leave the EU will have two years to apply to remain under the new immigration system.
What about recruitment going forward?
If you are looking to take on new recruits that are EEA nationals again, at this stage nothing has changed, you can still do so and the right to work checks required in respect of those recruits have not changed.
If the new recruit is new to the UK, as stated above, the government’s proposals in respect of those who have arrived in the UK from the EU after the “specified date” but before the exit date in 2019 is that once we leave the EU they will then have a two year transition period to apply to remain under the new immigration rules.
We do not currently know what immigration system will apply once we leave the EU. A Home Office document leaked in September suggested that the Points Based System, currently used to enable employers to hire migrant workers from outside the EU, could also cover EU recruits. However, this system only allows employers to recruit migrant workers into skilled roles and so may make things difficult for employers looking to recruit into low-skilled roles.
So what steps can employers take to prepare for Brexit?
- Ensure that sufficient support and information is given to your EU staff about Brexit developments. Keep up to date on developments and provide assurance to your staff that at this stage nothing has changed and that you will continue to keep them informed as soon as you are aware of any changes.
- If you have employees who wish to take steps to protect their UK immigration status, support them with this. Whilst Hewitsons are unable to advise employees directly we can provide employers with assistance in respect of supporting their staff in making applications and to enable accurate information and immigration advice to be circulated.
- It may also be appropriate to reinforce any diversity policies that you have and if you do have any issues that arise in respect of bullying and/or harassment as a result of the Brexit vote it is important that employers take firm action.
- Review your current reliance on EU employees to enable you to consider what, if any, measures will need to be taken. This could include:
- Considering how many of your workforce are EU nationals or non-EU family members, their roles and how many are permanent or temporary employees. Also consider whether any of your staff have a time limited right to work and confirm when future checks need to be made.
- Considering those employees that may be at greater risk of losing their right to live and work in the UK once we leave the EU and as mentioned above offer support and assurance where necessary.
- Consider the other options that may be available in terms of recruiting your labour if the UK is no longer in the EU and the knock on effects this may have. For example, there are likely to be additional costs involved and extended timescales to consider if you need to recruit individuals that no longer have the right to free movement.
- Consider whether you may need to register with the UKVI as a licensed sponsor in order to recruit the labour that you will need? If it is the case that the Points Based System is going to be rolled out to cover EU workers following Brexit, then in order to recruit such workers, the employer will need to become a licensed sponsor.
- Finally, consider whether you may need to put new systems and HR processes in place or change your current practices? If the removal of free movement is likely to change your recruitment practices, you may have policies and systems that will need to be looked at. Identifying which practices and systems may change at an early stage will be helpful once further detail is released as you can then move forward with this more quickly.