The clock is well and truly running down towards the December deadline for a trade deal between the UK and the European Union – leaving three million EU citizens living in this country in limbo.
As if we haven’t got enough to think about with managing our COVID-19 issues, many of our customers are now concerned about their EU employees, as there are several areas that need to be considered.
- The right to work (pre and post Jan 2021)
- Sponsorship Licences including applying for a sponsor licence in time for the rule changes on 1 January 2021
- HR-related issues such as clauses in your Contracts of Employment and having the correct policies in place.
The Right to Work
The Government has issued guidelines in it’s Settlement Scheme that will cause issues for many businesses who currently employ EU/EEA or Swiss nationals. If a Brexit deal is in place by 31 December, these people will be able to apply for settled status until 30 June 2021 if they arrived in the UK prior to 30 March 2019. Those who have entered the UK since then will not be able to apply at all.
In a no-deal scenario, those nationals already in the UK will only have until 31 December 2020 to apply for settled status so need to get on with application now.
Citizens from the EU/EEA/Switzerland will still be able to enter the UK after a no-deal Brexit to visit, work and study for up to three months without a visa, but must apply for Temporary Leave to Remain if they wish to stay beyond the three months. This leave, if granted, will allow recipients an additional 36 months’ stay. This period is not extendable and will not guarantee a route to UK settlement. Those wishing to stay beyond this leave period must qualify under the UK’s new skills-based immigration system, which will begin from January 2021.
With much still to be decided over Brexit, the EU Settlement Scheme is one area where there is relative certainty.
While there is no hard and fast decision on who can stay, it is proposed that in future EU workers should be paid a minimum salary of £25,600 per year and hold qualifications equivalent to a minimum of A Levels. This will cause a problem to industries where migrant workers occupy low skilled / low paid roles, such as manufacturing, transportation and agricultural labour. The CBI are trying to get these levels reduced as it will preclude low skilled/low paid workers from coming to the UK. Currently these people are generally on National minimum wage, which for over-25s is £8.72 per hour, equating to around £18k pa. Supervisors are generally on around £10 per hour, or £21k pa.
There are major uncertainties after 31 December 2020. If EU migrants haven’t applied for Settled Status by that date, they will be regarded as an illegal migrant, facing deportation, or having to prove that they meet the minimum criteria for a permit to work.
What Should Employers be Doing?
- Connect regularly with EU nationals in your workforce. Update them on developments, reassure them of their value to the organisation, and assist them with whatever steps are needed to attain settled status in the UK. OTS Solicitors in London are Immigration specialists and may be able to help.
- Apply for Sponsorship Licences for your staff. Again, OTS Solicitors can help here.
- Plan ahead for future workforce requirements and how these might be met given your reduced access to EU nationals.
- Consider alternatives to hiring EU nationals; for example, from other talent pools including among older, disabled or long-term unemployed people, or ex-offenders.
- Review your branding, job adverts and engagement activity with local educational institutions to help promote your organisation as a place to work, especially if the role or sector is deemed to be unattractive.
- Train and develop your existing workforce to reduce dependence on EU migrants.
Most importantly, you need to get this right. Ensure you have a suitable Law and Jurisdiction clause in your Contracts of Employment. Also have an up to date Border and Migrant Worker Policy in place in your organisation, and police it well.
Get this right and your business should be ready to deal with whatever comes out of the ongoing Brexit negotiations. However, the penalty for doing nothing could take a business under and in turn could result in a custodial sentence of up to five years and / or a £20,000 fine for each illegal worker.
Call us on 03456 122144 if you or someone you know needs clarification on these matters.
Consultant Director – Employment Law