What does a no-deal Brexit mean for your EU workforce?

What will happen if there is a deal?

In the event of a deal, there will be a transition period during which free movement of EU, EEA and Swiss nationals will continue until 31 December 2020. This will allow EU, EEA and Swiss workers (Workers) to continue to travel to and from the UK without restriction during this period and there will be little impact on workforces in the short-term.

What may happen if there is a no-deal?

In the event of a no-deal, Theresa May’s government announced a transitional arrangement until 31 December 2020 which would allow Workers to enter the UK to live, work and study for up to three months without the need to apply for or obtain a visa.  Those individuals who didn’t already have the right to remain in the UK for more than 3 months and wanted to, would need to apply under a new scheme for ‘European temporary leave to remain’. This would allow Workers to enter the UK freely at our borders without additional checks whilst the infrastructure to cope with future visa requirements was being put in place.

Priti Patel has now however indicated the government’s intention to end free movement immediately post-Brexit.  Without this transitional arrangement in place, chaos could ensue.  Workers living in the UK currently will continue to have the right to remain in the UK post-Brexit and are being ‘reassured’ that they will continue to be able to enter the UK.  Whilst this must be correct, many will not have an immigration status document evidencing their pre-existing right to remain in the UK which could mean that members of staff returning from travel overseas for work or leisure could face difficulty re-entering the UK to return to work.

The Home Secretary is believed to be considering alternative immigration systems to take effect on 1 November 2019 including a Singapore-style system in which broadly speaking people are counted in and out of the country.  Regardless of whatever system is put in place, it is very difficult to see how a new, functioning system can be implemented in such a short space of time.

How can employers help their workers?

The EU Settlement Scheme was introduced to enable Workers and their family members to remain in the UK after its withdrawal from the EU.

Under the Scheme, applicants with five or more years’ continuous residence in the UK will be granted ‘settled status’ allowing them to remain indefinitely; whilst applicants with less than five years’ continuous residence will be granted ‘pre-settled status’ allowing them to remain in the UK for five years. After completion of five years’ continue residence they can then switch to settled status.

The Scheme has been open for nearly 5 months and there has been over 1 million applicants granted status under the Scheme which confirms their right to remain living, working and studying in the UK post-Brexit.  There is no cost to apply and applications are currently being dealt with in around 4 days.

In the event of no-deal, the government says that applications must be submitted by 31 December 2020 by Workers who arrived in the UK on or before 31 October 2019. We however suggest that Workers should be applying now to ensure that they have evidence of their right to remain post-Brexit as this will assist them in the event that they need to re-enter the UK on or shortly after 1 November 2019.

Will employers be able to recruit from the EU after 31 October if there is a no-deal?

Yes. Although the immigration route by which Workers will be able to enter and remain in the UK is not yet clear.

Employers should be reviewing their future recruitment needs and where this requires overseas recruitment from the EEA, may wish to accelerate these plans to bring Workers to the UK pre-Brexit.

What about non-EEA workers?

Currently, the main work-based route for non-EEA workers is the Tier 2 visa which requires sponsorship from a UK employer with a sponsor licence and the role meeting minimum skill and salary requirements.

Theresa May’s government set out its proposal on the UK’s future skills based immigration system which is expected to apply from 1 January 2021 which aims to reduce net migration to “sustainable levels” and apply the same rules and criteria for both EEA and non-EEA workers.

With Boris Johnson publicly endorsing an “Australia-style points based system” and Priti Patel considering a Singapore-style system, the extent of the changes to the UK’s immigration system remains uncertain.  Employers may be wise to apply now for a sponsor licence to avoid a potential rush later in the year and the likelihood of increased processing times when the new rules come in to force.

What does this mean for right to work checks?

At present, employers are able to accept a passport or national identity card as evidence of an EU, EEA or Swiss worker’s right to work in the UK.  The Home Office’s guidance says that employers will continue to be able to accept these documents post-Brexit in addition to evidence of status being granted under the EU Settlement Scheme.

Further, employers are not required to distinguish between Workers who arrived in the UK before or after 31 October 2019 and do not need to check if a Worker has applied for or been granted status under the EU Settlement Scheme.

For further information on recruiting or retaining overseas workers, please contact a member of the Immigration Team.