Brexit: The implications for employers

What are the implications for employers in terms of recruiting and retaining staff?

The UK’s participation in EU free movement ended on 1 January 2021. In its place, the Home Office has implemented a new points-based immigration system for all migration to the UK, other than for Irish nationals.

What does this mean for business owners?

If you answer yes to the below questions, read on…

• Do you currently employ anyone who is an EU national?
• Do you currently employ anyone who is not a British Passport holder?
• Are you struggling to find employees with the right skills?
• Do you need to employ staff from overseas?

New Rules

It might help to think about foreign workers in one of three categories:

1. Europeans who were in the UK before 1 January 2021 will often have an almost unrestricted right to work under the EU Settlement Scheme (EUSS). They should hold either pre-settled or settled status.
2. Foreign workers, including Europeans looking to enter the UK for low-skilled employment will need entry permission that allows the right to work, such as Indefinite Leave to Remain, a dependant visa or perhaps UK Ancestry amongst others.
3. Foreign workers, including Europeans looking to enter the UK for skilled work will also be able to take employment if they have an entry permission that gives them a right to work.

UK immigration rules are highly complex and need to be taken seriously. Failing to comply with the immigration legislation can lead to civil penalties or criminal sanctions. Employing an illegal worker can lead to a £20,000 fine, criminal charges, reputational damage and/or the loss of any sponsored workers.

There are two main considerations when a person does not have the right to work in the UK. Can they secure the right to work in their own right or obtain a visa on the basis of family ties and if not, can you sponsor them?

EU Settlement Scheme

Europeans who are living in the UK before 31 December 2020 will need to make an application to the Home Office to continue their residence in the UK. The deadline to apply via the scheme was 30 June 2021 for those present in the UK before 11pm on 31^st  December 2020.

Settled status

Europeans will be expected to make an application for settled status if they have lived in the UK for five years with continuous residence and do not have a serious criminal conviction. Europeans who already hold Permanent Residence will need to convert their status to ‘settled status’. Continuous residence would be deemed broken if the applicant has spent more than six months in any 12-month period out of the UK. There are some exceptions to the absence requirement where a single period of absence of more than six months but less than 12 months is permitted if this is for an important reason.

Pre-settled Status

This is available to Europeans who have been in the UK for less than five years, but who intend staying and working in the UK. Once someone has been in the UK for five years, they will need to ‘upgrade’ their status from ‘pre-settled’ to ‘settled’ status.

Applying for British citizenship

Europeans can normally apply for British citizenship after residing in the UK for six years, as long as they hold a permanent residence document or settled status.

Employer Sponsorship

If a person cannot secure the right to work on their own, you as an employer may be able to sponsor them.

Consider the key criteria before looking seriously at sponsoring a worker:

(a) sponsorship is normally restricted to jobs at A-level or above

(b) an employer has to be willing and able to meet strict minimum salary requirements, currently set at around £25,600, and

(c) you can only sponsor a worker if there is a genuine vacancy and you may need to provide evidence of that.

If these conditions can be met, you can consider securing a licence and sponsoring the worker. You will then need to stay on top of your compliance duties on an ongoing basis.

Supporting your European workers

From 1 July 2021, employers will be expected to check whether Europeans hold a right to work in the UK, including through the EUSS. If the employee missed the 30 June 2021 deadline, they may be considered illegal in the UK.

For any business that is unsure of its obligations, professional advice should be sought from an immigration solicitor at the earliest opportunity.

Hiring staff

When hiring any employee, it is essential you don’t make assumptions about their status, nationality, visa, passport etc. You MUST carry out Right to Work checks on ALL applicants – before you employ them. You need to check certain documents, see originals and keep signed copies of the original documents. You must hold the checks in accordance with your data protection policy and they must be made available to Immigration Enforcement (IE) on request. A word of caution, IE have more rights of access than the police and early morning raids for illegal works are not uncommon‼!