Brexit – Employing EU Nationals Post-Brexit Bulletin Dec 2020

Employing EU citizens after 31 December 2020

The UK officially left the EU at 11pm on 31 January 2020.  There is now less than a month to go until free movement to live and work between the UK and EU member states will end. As things stand today, the chances of getting a deal appear uncertain.

The interim “implementation period” that followed the UK leaving the EU comes to an end on 31 December 2020 and was intended to stop a “cliff-edge” position giving employers time to implement the required measures gradually over time. Unfortunately, with COVID19 many businesses have spent the majority of the implementation period worrying about other things.

Around 3million EU nationals currently live and work in the UK. An employer has a duty to prevent illegal working and it is unlawful to employ someone who does not have the right to live and appropriate permission to work in the UK.

Employers face potentially severe criminal and civil sanctions if they fail to prevent illegal working.

The ongoing rights of EU citizens in the UK (and the reciprocal rights of British citizens to live and work in the EU) were one of the key issues during Brexit negotiations.

Some employers are delaying preparing for the changes as they wrongly presume that solutions for EU nationals will be linked to the ongoing UK/EU trade negotiations; but this is incorrect as citizens’ rights were agreed earlier in a withdrawal agreement.

We are awaiting the finer details of the new UK immigration system from the government, but we know the general position which is that an EU citizen wishing to work in the UK from 1 January 2021  will either need to apply for Settled or Pre-Settled Status (if they were already living in the UK on 31 December 2020) or else they will require a work visa. Similarly, British citizens wishing to live or work in the EU from 1 January 2021 will be subject to reciprocal requirements (the details of which will depend on which country the individual is going to for work).

A brief overview of the work visa process

The process for applying under the UK immigration points based system is fairly complex and there are several different Tiers to apply under, different types of visa that can be applied for under each Tier depending on the job and applicant and all have different qualifying criteria; however, broadly speaking:

• The visa is applied for (usually by the employer) when the employee is still overseas;
• The employee must have already had a formal job offer made to them and the employer must be a licenced sponsor (meaning the employer must hold a valid certificate of sponsorship); and
• The visa must be applied for no more than 3 months before the role is due to start and at least 4 weeks before the start date.

Preparing for 1 January 2021 – existing employees who are EU citizens

Current employees already living in the UK who are EU Nationals will need to apply for Settled or Pre-Settled status as soon as possible (and in any event before 30 June 2021 when the scheme is due to end).

• Settled Status: EU citizens who have resided lawfully in the UK for 5 years by 31 December 2020 will be able to apply for “settled status” (free of charge) to stay indefinitely under the EU Settlement Scheme (“EUSS”). They will be free to live, work or study in the UK, have access to public funds and services and can go on to apply for British citizenship when eligible. EU citizens need to apply for settled status under the scheme even if they already have permanent residence documents as indefinite leave to remain status will not be automatically given to them.
• Pre-Settled Status: EU citizens with less than 5 years residence on 31 December 2020 can apply for “pre-settled” status until they acquire the required 5 years continuous residence to obtain full settled status. This means they can continue to work, study etc until the 5 year period has accrued.

Failure to acquire settled/part-settled status before 30 June 2021 will render EU citizens “illegal immigrants” subject to removal from the UK

Irish citizens do not need to apply for settled status in the UK and can continue to freely live and work in the UK after 31 December 2020.

Our 3 step Brexit plan for Employers

STEP 1: Understand the new rules and keep your employees up to date

To ensure your business meets its legal obligations, to promote stability within the workforce and to manage any uncertainty with arrangements from 1 January 2021, you may wish to:

• Take advice or undertake training as necessary to ensure you understand how the rules will apply to your business from 1 January 2021;
• Provide an “update” resource for employees to keep track of Brexit developments;
• Provide information to employees on how to safeguard their immigration status (if affected);
• Support employees who wish to take steps to protect their UK immigration status and consider facilitating an information-sharing forum to enable accurate immigration advice to be circulated;
• Communicate a clear strategy for the business that includes its approach to Brexit, especially if your business is reliant on an EU national workforce or trade with the EU;
• Understand that the basic principles will also apply to British citizens working within EU member states (albeit they will be subject to the particular visa or immigration rules applicable to each relevant country).

STEP 2: Review and Implement

To understand what measures your business may need to put in place in anticipation for 1 January 2021, you should review your business’ current reliance on EU citizens and consider the following:

• Employers wishing to employ EU citizens from 1 January 2021 will need to apply for a sponsorship licence (e.g.  a ”Skilled Worker Licence “) which usually takes on average 8 weeks to apply for;
• Consider applying for a sponsorship licence (if you think you may need one, the sooner the better you can apply will be advantageous to avoid the inevitable influx of businesses applying at the end of the year);
• If you already have a licence, check that it covers the type of employees you need it to cover and ensure that you understand and can meet your sponsorship duties (including your system for right to work checks; reporting any changes to your business or sponsored workforce; and being prepared for an unannounced Home Office audit);
• Audit your EU citizen employees – know who they are; whether they have a fixed term or permanent position (which is likely to see them employed after 31 December 2020); understand their current immigration status and whether will you need to make any further status checks after 1 January 2021; and decide whether you can assist them with protecting their status (for example helping them apply for settled status);
• Are you planning on taking on any new EU citizens shortly and could you bring their start date forward so that they arrive in the UK before 31 December 2020?
• As a business do you generally rely on or have your historically relied on taking on EU citizens and if so for what reason;
• Do you need to relocate any of your employees (either in or out of the UK)?

STEP 3: Future-proof your business immigration

Consider putting a strategy of steps to take prior to 1 January 2021 in place now which looks at:

• Your current HR checks-are these robust enough to meet your legal obligations and do they enable your business to establish the immigration status of all employees (not just foreign nationals, to avoid allegations of discrimination);
• Your current recruitment processes – do these need to be lengthened to take into account the time it will take EU nationals to apply under the UK immigration process? Depending on the role, the employee may have to meet certain criteria, such as proving English language competency before the visa can be processed and these steps will all add time to your recruitment process;
• Your recruitment budget – you will need to factor in the cost of sponsorship licensing, visas and possible Immigration Skills Charges and Immigration Health Surcharges (giving an employee access to the NHS) into your recruitment process and budgets. It is believed that it may become prohibitively costly for many businesses to employ EU citizens in the future.

It is expected that the average visa application will need to include: an application for sponsorship (c.£1800 per application for a 12 month visa for a small company); an “Immigration Skills Charge” (c.£5,000 per employee); and an Immigration Health Surcharge (c. £624pa) for visas for longer than 6 months.

• Future digital work status checks: From 1 July 2021 employers taking on EU/Swiss nationals (with the exception of Irish nationals) must also check the employee’s work status digitally (under the EUSS or new work visa rules).

Data Protection/GDPR post-Brexit

Following the end of the implementation period, from 1 January 2021, the UK will become a ‘third country’ for the purposes of the EU rules relating to data protection/GDPR.  These rules have already been incorporated in domestic UK legislation which means that the existing rules will continue to apply to personal data being held, stored or processed within the UK largely unchanged.  However, where a business also holds, stores or processes data within the EU, the situation may change. The EU will need to declare the UK personal data protection provisions ‘adequate’ and we could be subject to additional rules in the future.  EU based businesses will only be able to share personal data with UK businesses if ‘appropriate safeguards’ are in place.  It is therefore advisable that you review your existing commercial contracts to see what provisions you currently have in place regarding data protection/GDPR and that you take any further advice where necessary if you are unsure of your obligations going forward.

We hope that you found this bulletin helpful. The contents of this bulletin are for information purposes only and should not be relied upon as legal advice. Please do not hesitate to contact Jane Smith jane@hunterlaw.uk if you would like any further assistance in relation to any of the issues covered in this bulletin.