Amidst the seemingly endless chaos and uncertainty surrounding Brexit negotiations, votes and pledges on everything from free market access to customs unions, to trade deals, Irish border back-stops and bar room banter in Brussels… there is now some short term certainty about the rights of the 3.5 million EEA nationals living and working in the UK beyond the 29 March 2019.
As things stand, it has been agreed that the UK shall enter a 'Period of Separation Implementation' (i.e. a transition period) commencing 30 March 2019 through to 31 December 2020. Agreed negotiations thus far look to protect the rights of EEA nationals, their spouses, and children who have already been exercising free movement rights in the UK. For example:
- EEA nationals that have been lawfully in the UK for five years or more by 31 December 2020 will be able to apply for 'Settled Status' in the UK via a new 'EEA Settlement Scheme' anticipated to fully launch March 2019.
- Once granted Settled Status, these EEA nationals will be treated on the same footing as British nationals in terms of residency, access to employment, healthcare, social security and pensions.
- EEA nationals and their non-EEA family members who have been legally resident in the UK for less than five years by 31 December 2020 will be able to apply (again via the new EEA Settlement Scheme) to extend their stay for longer (known as Pre-Settled Status), until they have reached a five-year threshold and could then apply for Settled Status.
- Recently, despite the political squabbling, the Home Office has agreed a scrapping of the £65 application fee for registering via the EEA Settlement Scheme.
This sounds relatively clear. But despite these agreements, long term uncertainty continues to create anxiety for EEA national employees.
Ending free movement
So far,free movement is effectively retained under the architecture of the EEA Settlement Scheme. However, the UK's ultimate departure from the European Union will almost certainly lead to a hard stop to free movement, currently set for 1 January 2021.
This means UK employers, and their EEA national employees can breathe easy for a little while longer. For EEA national employees, they will have to start thinking about registering via the EU Settlement Scheme - in many cases for the first time – waiting on a formal written recognition from the Home Office of their status in the UK and hence their continuing right to work.
For UK employers, they will need to carefully consider whether their EEA employees maintain the legal right to work, and whether their EEA employees have provided new evidence to show this. UK employers that overlook this obligation may face penalties of up to £20,000 per "illegal" employee (i.e. an employee who cannot prove their right to reside and work lawfully in the UK). UK employers must have amended or flexed their existing employee information systems to ensure that EEA nationals, formerly outside the scope of more extensive right to work vetting applied to non-EEA national employees, do not slip through the net, leading to significant Home Office exposure.
What will be the lay of the land post-Brexit?
The long term migratory framework to the UK for EEA nationals is no doubt in a state of flux. Despite a relatively clear direction of travel short term, the immigration system ultimately to be imposed for EEA employees post-Brexit and post the Period of Separation Implementation is still not yet clear. It could be similar to the existing Points Based immigration system currently in place for non-EEA nationals requiring, among other things, a job offer to be made prior to arrival in the UK, and a UK employer proving that a British or EEA employee with a settled status cannot be found for the role. The problem is, at this stage, we just don’t know. Given this longer-term uncertainty, UK businesses should be prepared and agile to adapt to the imposition of a new immigration regime post-Brexit, and in the short-term, consider the wider utilisation of a Tier 2 sponsorship licence, which allows UK employers to hire employees from outside of the EEA.
What this means for employers
But what might this actually mean for UK employers and EEA national employees from an "employee relations" perspective? What can employers do to reassure their talent over the medium to longer term regarding their long-term employment status? EEA national employees have careers, family members, professional and social networks and schooling concerns all based on, until now, a happy, secure and settled career in the UK.
The best way for employers to calm EEA national talent amidst the uncertainty is clear and transparent communication. To this end:
- Take stock and conduct an employee census. Lots of businesses struggle to readily share the number of EEA employees they actually have, and whether any thought has been given to the Brexit-hardiness of the roles they occupy.
- Get behind your EEA national employees and get to grips with their anxieties. Employers need to proactively manage their employee relations to mitigate the risks from a "no deal" Brexit leading to disenchanted EEA employees, and the potential for existing EEA national employees to feel unwelcome/excluded in the UK. Ensure the management teams have the skill set to monitor and record a shift in sentiment amongst the workforce or the short and medium terms as things develop. You may wish to consider offering anxious EEA national employees access to specialist immigration or legal advice as needed.
- A migration "workshop" for your EEA national employees to raise all and any concerns, queries and issues which they would like answered about the evolving post-Brexit migration system is a good place to start. Think about engaging some good immigration advisors and counsel to partner with you so they can answer the tricky questions and you can focus on a clear commitment to transparency, support and on-going communication.
If employers haven't thought clearly about mitigating the effects of these types of issues in practice, it is time to do so. It is very easy to see how feelings of marginalisation, exclusion, unconscious bias and potentially feelings of discrimination can arise (whether justifiably or otherwise) in such a potentially febrile environment. Employers should avoid relying on the modicum of Brexit certainty of the short-term immigration rights of EEA nationals beyond 29 March 2019, but should have in place (or be in the process of putting in place) a carefully thought thorough and comprehensive employee relations strategy to support their EEA national employees through the years ahead.