We last wrote about Brexit in February 2020, just weeks before the world was turned on its head by a global pandemic and associated lockdowns. After dominating the headlines for months, Brexit coverage suddenly took a back seat to Covid-19. The UK transition period for leaving the EU was no longer the most urgent focus for organisations.
So, on the anniversary of that post, we thought it important to provide a refresher, especially now that the Brexit transition period is over and the countdown to the EU Settlement Scheme deadline draws ever closer, ensuring no one is met with any nasty surprises once the world returns to some semblance of normal.
The status of EU citizens in the UK after Brexit
The UK left the EU on 31 January 2020, and the transition period ended on 31 December 2020.
Under the EU Settlement Scheme, which confirmed the end to free movement between the UK and EU from the end of December 2020, EU, EEA and Swiss citizens and their families resident in the UK before 31 December 2020 have until 30 June 2021 to apply to continue living and working in the UK.
Successful applicants are granted a ’Settled Status’ (for those who have been living in the UK for 5 years continuously up to 31 December 2020), or ‘Pre-Settled Status’ (for those who have not yet reached 5 years of continuous residency as of 31 December 2020, but were living in the UK when the UK departed the EU – they may apply for ‘Settled’ Status once they have reached their 5-year anniversary). Whether Settled or Pre-Settled, those individuals have the right to work in the UK.
Do you have employees who are EU citizens?
If you have EU citizens in your employment, and they wish to remain in the UK and continue to work for you, it is important that they apply to the EU Settlement Scheme before 30 June 2021. If they fail to apply, or are not granted a successful Status, they will be living and working illegally in the UK after 30 June 2021.
Applying for the Scheme is the responsibility of the individual, and there is no legal obligation for them to inform you, as their employer, as to whether they have applied or not. Likewise, it is not the responsibility of the employer to ensure that the employee has applied for the Scheme. However, you can always follow up with regular reminders of the Scheme and deadline, as a form of gentle encouragement for any employees for whom it applies.
Rules to remember:
- Employers are not legally required to communicate with employees about the Settlement Scheme.
- Employers may not request proof of Status from existing or new employees until after 30 June 2021;
- If you wish to provide formal advice to EU citizens in your employment on matters of immigration, you must be qualified to do so. This does not prevent you from providing useful contacts etc., as outlined in ‘So how can you help?’
- You cannot make an offer or an extension of employment to an EU citizen on the condition that they apply to the Settlement Scheme, as this is considered
So how can you help?
As advised in our previous Brexit post, it is wise to make a list of your employees who are EU, EEA citizens or Swiss Nationals and affected by Brexit. Although it is not a legal requirement for the employer to provide advice or chase up an employee’s progress, it is important to make helpful information available and to keep lines of communication open, in the event that any affected individuals in your employment require advice, support or assistance in making their applications.
Ways to communicate with employees include:
- Circulating flyers or PDF documents detailing the application requirements and process;
- Putting up posters about the Settlement Scheme, advising employees of deadlines;
- Referring employees to look at video guides online to the application process; and
- Hosting workshops or drop-in sessions for employees to receive advice and assistance.
Think Beyond Your Own Employees
What about your employees’ partners or other close family members? It may be fine for your organisation if your employee is granted a successful status (Settled or Pre-Settled), but if their partner’s application is not successful, how might this affect their overall situation? How might it affect their decision to stay? This is sometimes an overlooked aspect of the effect that Brexit could have on the make-up of a workforce.
Prepare For The Worst, But Expect The Best
Although it is expected that most EU citizens will be successfully granted a Settled or Pre-Settled status, some will be rejected, and some may simply choose not to stay in the UK after June 2021. You cannot know in advance who will be accepted or rejected, and you cannot press your employees for details on their future plans, but you can plan for what might happen if you were to lose key members of your workforce. Identify any areas of your organisation that might be impacted most by the loss of employees – are there other employees in your employ with similar skills that could bridge the gap? Is it an opportunity to train some of your existing team to avoid these gaps? You can also look into what your recruitment and training arrangements would be, should you need to bring in new employees to fill vacated roles.
Speaking of Recruiting…
From 1 January 2021, a point-based system was introduced for those looking to work long-term in the UK. The Skilled Worker visa option is available, providing the criteria is satisfied by the candidate:
- They will be working for a UK employer that has been approved by the Home Office;
- They have a ‘certificate of sponsorship’ (see below) from the employer, with details of the offered role to them in the UK;
- The offered role is on the list of eligible occupations; and
- They will be paid a minimum salary; this is dependent on the role.
More specific eligibility will depend on the job, additional information can be found here
As an employer, if you wish to recruit candidates internationally, your organisation will need to become a sponsor:
- Ensure your candidate is eligible to work in the UK under the new points immigration system (see above);
- Provide the necessary supporting documentation for your sponsor licence application;
- Allow 8 weeks for the application process, fees will range from £536 to £1476. If successful, the licence is valid for 4 years;
- Your candidate must now make a visa application. The employer must endorse this through their sponsor licence; and
- If the visa is granted, your candidate may travel to the UK and start working.
This is just a brief overview of what is quite a detailed new process for recruiting candidates from outside the UK after Brexit; a wealth of support and links can be found on the Government webpages linked above. It is vital that you have the correct documentation in place for each step of the process and assign an individual (s) within your organisation to manage this.
While we appreciate that many organisations will not be recruiting at the moment, it is however important to be ready and prepared for any changes that could come about once the global pandemic is under control, and furthermore as we approach the 30 June 2021 ‘Settlement’ deadline.
If you require more information or guidance on this topic, please do not hesitate to contact us.