Risk & Economy » Brexit » Employing EU nationals post-Brexit- what corporate leaders need to know

Employing EU nationals post-Brexit- what corporate leaders need to know

Simon Walsh, a partner at law firm Oury Clark, considers the challenges for UK companies employing EU nationals and how to respond to them.

With fresh headlines of doom and gloom post-Brexit appearing seemingly every day, it can be difficult to keep track of just what position businesses and their employees will be in after Halloween. And for companies employing EU nationals, the uncertainty is particularly disconcerting.  Despite this though, there are steps employers and their EU nationals can take to secure their position in the UK.

For EU nationals, the key is whether the EU national is living in the UK before the UK leaves the EU.

If the UK leaves without a deal and an EU national is living in the UK before the date the UK leaves, then an EU national is able to apply for either settled or pre-settled status under the EU Settlement Scheme.   The EU Settlement Scheme opened in March this year and all employers should encourage their EU national employees to make sure they apply for settled or pre-settled status while there is at least some level of certainty.

As it currently stands, although this could change, if the EU secures a deal an EU national has until 30 June 2021 to apply or 31 December 2020 if there is no deal.

If the UK secures a deal

If there is a deal, EU nationals living in the UK will have until 30 June 2021 to apply under the EU Settlement Scheme.

Even though they need to apply to remain in the UK under the EU Settlement Scheme, if an EU national has been in the UK for five or more years, and is able to produce a sufficient level of evidence to satisfy the Home Office, they will be granted settled status.  If they have been in the UK for less than five years, or are unable to produce sufficient evidence, they will be granted pre-settled status.   If an EU national does happen to be granted pre-settled status even though they have been in the UK for more than 5 years, the Home Office will grant the pre-settled status and then invite the EU national to produce additional evidence, which if acceptable to the Home Office will result in the Home Office updating the status to settled.

An EU national with either settled or pre-settled status will be able to continue to live and work in the UK, access the NHS and travel in and out of the UK.  If an EU national has settled status, then they are able to spend 5 years in a row outside of the UK without losing their settled status.

The government has also assured students and self-sufficient people living in the UK and applying to remain under the EU Settlement Scheme, that they will not have to prove they have held comprehensive sickness insurance, which was often an impediment for EU nationals applying for UK residency before the EU Settlement scheme was implemented.

In a no-deal Brexit scenario

If they were in the UK before the UK leaves the EU, even if there is no deal, they will still be able to apply for either settled or pre-settled status under the EU Settlement Scheme. They however will only have until 31 December 2020 to apply for this status and not 30 June 2021.  Dependent on what happens on 31 October this year, this date may well change, which is the reason why many employers are encouraging their EU national employees to register before 31 October.

EU nationals with permanent residence or indefinite leave to remain

If an EU national has a valid “UK permanent residence document”, to continue living in the UK after 30 June 2021, the EU national must either apply for the EU Settlement Scheme or apply for British Citizenship either before 30 June 2021 or 31 December 2020 (if the UK leaves the EU without a deal).

If an EU national has “indefinite leave to remain” (ILR), the EU national can continue to live and work in the UK irrespective of whether there is a deal or a no deal scenario.  There is though quite an advantage if an EU national who already has ILR now applies for the EU Settlement scheme, as the will be granted “indefinite leave to remain under the EU Settlement Scheme” which means they can spend up to 5 years outside of the UK without losing their status under the EU Settlement Scheme as opposed to 2 years under the current ILR scheme.

The end of free movement

As freedom of movement will effectively end at midnight on 31 October 2018 (or a later date depending on what happens over the next 3 months) if an EU national wishes to come to the UK after the UK has left the EU and they want to stay for longer than three months, then they will need to apply for European Temporary Leave to Remain Status. Through this, they can stay in the UK for a further 36 months to work and study, though they won’t be able to extend this visa. At or before the end of this time, EU nationals will have to apply under the whole new framework that will replace our current immigration system.

It’s still unclear what this new framework will look like. At the moment the government is fixated on this minimum salary of £30,000 per annum (although one of the would-be PMs has indicated there might be a softening on this), but that’s just not realistic for low-skilled labour. The UK is so reliant on EU nationals for both skilled and unskilled work that it’s incomprehensible to understand how the government expects businesses to access the labour they need, even more so now with a record low unemployment rate.  They talk about being “open for business” but they are effectively closing the door to a significant pool of much needed workers, be they skilled or unskilled.

Right to Work checks and EU nationals

There is no obligation on employers when carrying out right to work checks to distinguish between EU nationals who have arrived before or after Brexit day. All that an employer is required to do is take a copy (and sign and date that copy) of either the EEA passport or an EU identity card.

This is how things stand today. But it goes without saying that it could all change again, especially if there is any re-negotiation on the withdrawal agreement further down the line. It’s anyone’s guess as to how this will play out over the next 3+ months.

 

 

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