The realities of Brexit, from a practical and administrative perspective, will be obvious for the first time at the end of 2020 – government, businesses and individuals will need to be ready.
From an employment law point of view, there are no anticipated changes as UK employers will be expected to continue to follow EU rules until 2021. There is also strong public support for the protection of existing workers’ rights beyond this date, despite government plans recently being criticised for lacking clarity in this area.
But since the EU referendum in 2016, a major concern has been how Brexit will affect access to the staff employers need, especially in sectors that rely on overseas labour like healthcare, social care and hospitality.
Even though a deal has not yet been struck, it is understood that Brexit will end the free movement of EU citizens between the UK and EU nations and a new immigration regime that covers all non-UK nationals will be brought in.
Just what impact this will have remains to be seen, but immigration from the EU has decreased substantially since the referendum and this downward trend may continue depending on if a deal is struck. According to the latest Office for National Statistics estimates, EU net migration stood at 48,000 in the year ending June 2019, compared with over 200,000 in 2015 and early 2016.
As things stand, EU citizens will still be able to enter the UK freely during the transition period, so employers will still be able to access workers during this time. If the UK leaves without a deal, these staff and their families will need to apply for European Temporary Leave to Remain status to continue to live and work in the UK in 2021.
Employing EU citizens
• Compile a list of employees who are EU citizens and may be affected by Brexit.
• Start to reach out to them to understand their circumstances and to see whether they have applied for the EU settlement scheme.
• More than one million EU citizens have, so far, been granted settled or pre-settled status since the scheme was introduced – around two thirds of Europeans in the UK are yet to register.
• Consider putting FAQs and an information sheet on your intranet or hold drop-in sessions for EU citizens working in your organisation.
Key points on the EU Settlement Scheme
• EU, EEA (EU countries plus Liechtenstein, Iceland and Norway) or Swiss citizens and their families can apply to the settlement scheme now, to be able to continue to live and work in the UK after 30 June 2021.
• If the application is successful, the individual will be granted either settled or pre-settled status.
• Settled status is usually given to individuals who started living in the UK by 31 December 2020 (or the date when the UK leaves the EU in a no-deal scenario) and who have lived in the UK for 5 years continuously.
• Pre-settled status is usually given to those who do not have 5 years’ continuous residency in the UK when they apply and are living in the UK when the UK exits the EU. When the individual reaches their 5-year anniversary of living in the UK, they will be able to apply for settled status. Individuals can stay in the UK for a further 5 years from the date they receive pre-settled status.
• Under both settled and pre-settled status, individuals have the right to work in the UK.
• The deadline for applying to the settlement scheme is 30 June 2021 if the UK leaves with a deal, and 31 December 2020 if the UK leaves without a deal.
Things to know about the EU Settlement Scheme for employers
• It’s the individual’s responsibility to make an application to the scheme. There is no requirement for them to inform you, as their employer, or for you to ensure that they have applied.
• You cannot make an offer of employment or extension of employment on the condition that they have made an application to the settlement scheme. This is considered discriminatory.
• Current ‘right to work’ checks, for example using a passport or national ID card, are valid until the end of 2020.
• In the event that the UK leaves the EU with a deal, the rights and status of EU citizens living in the UK will remain unchanged until 30th June 2021.
• In the event of a no-deal scenario, this date is amended to 31st December 2020.
• You must be careful not to provide any advice with regards to immigration to your employees unless qualified to do so.
• You will not need to carry out retrospective checks on existing EU employees when the UK transitions to the future skills-based immigration system.
• Employers are not legally obliged to communicate to employees about the settlement scheme; however, it may be useful to point them in the right direction for information.
It is important for employers to maintain open and transparent communication with their staff around Brexit and its employment implications. Employers should support staff effectively in applying for the EU settlement scheme, if they wish to do so.
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