As 31 October 2019, and the risk of a No Deal Brexit, approaches, many businesses will be focussing on the implications for their European staff members. For as long as the UK remains in the European Union, European nationals (i.e., from the EU/EEA) are entitled to come to the UK to work as they will be exercising EEA Free Movement Treaty rights. Partners (spouse, civil partner or cohabiting partner of at least two years) of European nationals are also free to work in the UK provided they have the requisite documentation issued under the European regulations to demonstrate this. However, the UK's withdrawal from the European Union will change the rights that European nationals and their family members enjoy in the UK.
European nationals who are in the UK before Free Movement Treaty rights come to an end should be able to continue to live, work and study in the UK in the same way they can now, and be able to settle (namely, obtain permanent residency status) in the UK after five continuous years in the UK. However, European nationals and their family members in the UK will require documents issued under UK law to evidence their permission to live in the UK. It is possible to apply for these documents already under the Home Office's "EU Settlement Scheme". European nationals who have been in the UK for fewer than five years need to apply under the EU Settlement Scheme for "pre-settled" status. European nationals who have been in the UK for five years or more need to apply for "settled" status.
It is not possible to state with certainty when Free Movement Treaty rights will come to an end but, at present, the following scenarios are anticipated in the event the UK leaves the EU with or without a deal:
Brexit with a deal
In a negotiated exit, the date that Free Movement will end will depend upon the deal agreed. If the terms of the deal for the end of Free Movement are the same as those negotiated by Theresa May, Free Movement will continue until 31 December 2020, meaning that European nationals who come to the UK on or before this date, may live, work and study in the UK without a visa or documentation to evidence their status in the UK. However, European nationals will be required to obtain documents evidencing their "pre-settled" or "settled" status in the UK by 30 June 2021. Failure to obtain these documents will result in the European national and their family members being illegally in the UK.
Brexit without a deal
In the event the UK leaves the EU without a deal, it is possible that Free Movement will come to an end immediately. EU nationals in the UK before Free Movement comes to an end should apply for "pre-settled" or "settled" status in the UK by 31 December 2020. Failure to obtain these documents will result in the European national and their family members being illegally in the UK.
It is anticipated that EU nationals arriving in the UK between Free Movement ending and 31 December 2020 will still be able to arrive in the UK without a visa. At their port of entry to the UK, they will be granted permission to enter the UK for a period of three months and they may work in the UK during those three months. If they are required in the UK longer than three months, they will need to make a visa extension application in the UK which will be granted for a maximum of 36 months. This visa is a temporary visa and cannot be extended again. If the European national wishes to remain in the UK after the expiry of this visa, it will be necessary to apply for a visa under the new UK immigration system which will be in place, provided there is a visa category available in which to apply.
Steps employers can take now
To strengthen their position in the post-Brexit immigration landscape, employers should consider the following:
1. Protect your business' position
Employers should conduct a full audit of their workers in the UK to identify employees who will need to obtain settled or pre-settled status between now and the relevant deadline to make applications under the EU Settlement Scheme. It is important to communicate the requirement to obtain the necessary status to their workforce and monitor when applications are being submitted. Employers should ensure they see any settled or pre-settled status documents as soon as the worker receives them and that copies are taken to keep on the worker's HR file as evidence of their right to work in the UK. Employers should keep a spreadsheet of who has obtained the correct documents and who has not. In this way, should any employee fail to obtain the necessary paperwork and a visa system be imposed, those who require a visa will be already known and the company will be well-placed to take immediate action to minimise any risk of illegal working.
2. If the business does not have a Tier 2 sponsor licence yet, consider applying for one
Non-EEA nationals who require a visa to work in the UK currently do so under a Tier 2 visa. With unemployment currently at 3.8%, any new system is likely to put tremendous pressure on the Tier 2 visa route, which is already operating at capacity.
It is unlikely that UK employers will be able to find all of the skilled talent that they require in the UK in the short term and a sponsor licence may become invaluable. Post-Brexit, the application process for a Tier 2 sponsor licence may become protracted due to the number of companies making applications, leading to inevitable recruitment delays.
3. What if the business already has a sponsor licence?
Businesses which already have a Tier 2 sponsor licence should consider their skilled labour needs in the medium-term. It may be that they need to apply for an increased certificate of sponsorship allowance to bring in foreign skilled labour. It is only likely to get more difficult in the future as the system gets more congested, so acting early may save difficulties later.