Employing Foreign Nationals - How could this be affected by Brexit?
With all the political chaos over the rejection of the Brexit plan by Parliament on Tuesday 15th January 2019, the Prime Minister is now considering new plans on the EU withdrawal to be shortly placed before Parliament.
Brexit has caused a lot of concerns and confusion to the business community. The issue is how all this affects the position of employing or continuing to employ EEA nationals. Especially in the event of a “no deal”, as the alternative of sponsorship of overseas workers through the UK’s Points-Based System, is a complicated, expensive and a long drawn out process.
Had the withdrawal agreement been approved i.e. a deal then there would have been a transitional period running from 29th March 2019 to 31 December 2020 and thereafter from 1 January 2021 there would have been more stringent immigration control over EEA and non-EEA nationals.
The Prime Minster had previously indicated that during the transition period EEA nationals currently in the UK would continue to be able to work and live in the UK as they do now, however during this transition period, EEA nationals would need to ensure that they apply for settled or pre-settled status by no later than 30 June 2021.
It seems very unlikely that the Government would go back on matters related to settled or pre-settled status under its new plans (to be debated before Parliament) hence the rest of this article endeavours to explain the current understanding on settled or pre-settled status.
Settled status would be available to those who have accrued five years continuous residence in the UK prior to 31 December 2020. Those EEA nationals moving into the UK prior to 31 December 2020 but who have not yet lived in the UK for five years would be eligible for pre-settled status. This would give them the right to remain until they reach the five-year mark, at which point they can apply for settled status with permanent residence documents no longer being valid after 31 December 2020.
Prime Minister Theresa May has announced that EU citizens registering for settled status in the U.K after Brexit will no longer have to pay a £65 application fee, which is a welcome relief as the government had faced criticism over compulsory fees for those applying.
Settled status is not the same as permanent residence. It’s not an automatic right but rather a status that EEA nationals will need to apply for and be granted. EEA nationals who fail to apply for settled status / pre-settled status before the deadline may no longer have a legal right to live in the UK.
Applications for the settled status scheme will be fully open by 30th March 2019 and the deadline to apply for settled status would be 30 June 2021. Applicants can apply online and will need to prove their identity and continuous five-year residence in the UK (or less for pre-settled status). Criminal background checks will also be conducted for applicants over 18.
The following non-EU family members will also be eligible for settled status:
- Spouses, civil partners and unmarried partners (with residence cards)
- Children, grandchildren or great-grandchildren under 21
- Children over 21 who are dependants
- Parents, grandparents or great-grandparents who are dependants
- Dependant relatives who hold a residence card
It is important to note that the scheme currently only covers EU nationals, as separate agreements are likely to be agreed with the governments of Norway, Iceland, Lichtenstein and Switzerland and it is expected that nationals of these countries will be able to participate in the scheme.
Also, EEA nationals could look to applying for permanent residence if they have lived and worked lawfully in the UK for a continuous period of five years and permanent residence would be confirmation that the EEA national would have indefinite leave to remain in the UK and thus are permanent resident of the UK. It would then be very difficult for the UK Government to go back on this status, so this means when the UK exits the EU the EEA nationals will be a permanent resident of the UK, recognised under UK law. They will therefore not be subject to any immigration control on their right to reside and work in the UK.
With permanent residence status, it is possible for an EEA national to acquire British citizenship through their residence in the UK where after they have held permanent resident status in the UK for a period of 12 months, they may apply to become a British citizen. The process is called ‘naturalisation’.
For EEA employees who have not worked in the UK for five years, they can also look to applying for a document called an EEA Registration Certificate which confirms their status under EU law and that they have a right to reside and work without immigration control, but the better route would be pre-settled status.
No Deal Brexit
It seems likely that EEA nationals already in the UK by 29 March 2019 will be able to remain, as The Immigration Minister, Caroline Nokes, confirmed on 7th November 2018, that “The Prime Minister has been very clear, as indeed has the Brexit Secretary, that we will honour our commitment to EU citizens and their family members…….”, thus the implication being that employers will not need to make additional right-to-work checks on EEA nationals in the event of a no deal Brexit but it is unclear whether free movement will continue for EEA nationals arriving post-Brexit.
It appears that the UK government is not ready to introduce a new immigration system for EEA workers and their families if there is no deal and the likelihood is that the ‘settled status’ and ‘pre-settled status’ provisions would still apply regardless of the outcome of the Brexit negotiations but this could change if the EU does not agree to a transitional period on its side in the event of a no deal and impose immigration controls on British nationals coming into the EEA for work after Brexit and the UK Government then look at a tit for tat response.
As it relates to Irish nationals, UK and Ireland are part of the Common Travel Area, which pre-dates the UK’s membership of the EU. The rights of Irish citizens to live and work in the UK are not affected by Brexit in this regard and therefore Irish citizens do not need to apply for immigration status in the UK. However, any family members who are not British or Irish citizens will need to do so.
In terms of what the future holds post Brexit beyond the provisions of ‘settled status’ and ‘pre-settled status’ scheme, the Government has released its white paper on 19 December 2018 over their controversial proposals setting out the new immigration system which in the main the Government has accepted the recommendations set out in the Migration Advisory Committee’s September 2018 report.
The proposals include bringing EEA migration into the current Points Based System used for non-EU workers. This would mean EEA workers will need a visa to work in the UK as skilled workers. The existing Tier 2 scheme will undergo some changes like the abolition of the annual cap and an extension to workers in medium-skilled roles.
Prior to the white paper, there had been some uncertainty over whether employers could rely on overseas nationals (be it EEA or non-EEA nationals) to fill lower-skilled roles and in this context the Home Secretary, Sajid Javid, has indicated that the immigration white paper proposes a new scheme that would allow migrants to continue coming to the UK for up to a year under a visa system that could come into effect after the end of the implementation period in December 2020.
Despite the above with the on-going uncertainties over Brexit there is no substitute for employers to start looking at recruitment and training strategies to encourage more British workers to apply for such jobs subject to ensuring there is no discrimination against EU nationals.
The Points Based System is itself not a smooth process and although the white paper suggests applications should be processed within two to three weeks, however it’s questionable whether the Home Office will have enough resourcing to meet these timescales, especially given the additional volume of work they are likely to face.
In light of the significant issues over Brexit, it would be sensible for employers to review their working relationship with their EU employees. Although both prospective and current employer have a duty not to discriminate against EU nationals in light of Brexit (as current ‘right to work’ checks e.g. passport and/or EU national ID card will continue to apply until the end of 2020) they should encourage their EU employees to review their continued UK immigration status on the assumption that they wish to continue to work in the UK beyond 30 June 2021 and to address such matters. The Government has set up an on-line tool kit with guidance notes to assist EEA nationals and employers alike called ‘The EU Settlement Scheme’.
Please note that the EEA includes EU countries and Iceland, Liechtenstein and Norway. It allows them to be part of the EU 's single market. Switzerland is neither an EU nor EEA member but is part of the single market - this means Swiss nationals have the same rights to live and work in the UK as other EEA nationals.
EU countries are Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK (for now at least).
The contents of this newsletter is intended for general information purposes as the Government may decide to totally over haul their proposals highlighted in this article hence watch this space for further updates.
See also Brexit and Employment Status
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