What BREXIT Means for Employers from an Immigration Perspective
In December 2019 we saw the Conservative Party win the general election, on the 23rd January 2020 the Withdrawal Agreement Act was passed and on the 31st January 2020 the UK left the European Union with a divorce deal.
As an employer, what does this mean for you from an immigration perspective?
Under the Withdrawal Agreement, there is a transitional period running from the 31st January 2020 which is the day we left the European Union until 31 December 2020.
Despite the political significance of the 31st January 2020, legally speaking nothing has changed.
The European Communities Act 1972, which implements EU law in the UK, was revoked on exit day. However the European Union (Withdrawal Agreement) Act 2020 says that the 1972 Act continues to have effect in the UK during the transitional period, despite being revoked.
The important date, for the purposes of the continuing effect of EU law, is the end of the transitional period which is the 31st December 2020.
1. What will happen on and after 31st December 2020?
Firstly, all UK legislation derived from EU law continues to have effect (Reference 1). Directly effective EU rights also become part of UK law automatically at the end of the transition period (Reference 2). Where the EU legislation is concerned only rights which have been recognised by the courts prior to exit day become part of UK law. But EU law continues to supersede UK law, in relation to laws passed before the end of the transition period.
This ensures continuity in areas where Parliament has not yet got around to changing or repealing EU-derived UK legislation and directly effective EU law.
2. What will happen to the EEA regulations 2016 which permits free movement?
In reality, it is very likely that the EEA Regulations will be revoked in its entirety on 1st January 2021 by the forthcoming Bill (Reference 3). Otherwise free movement would continue after the end of the transitional period which is not something the UK government wishes to maintain.
Boris Johnson has already announced that he wants to reduce lower skilled workers by 90,000 as a result of Brexit therefore keeping a concept of free movement is not on the agenda.
3. What should employers do during the transition period?
It is important for employers to keep track of Brexit developments. First and foremost as the UK Government starts to iron out the withdrawal agreement keeping on top of key legal developments is very important. Currently we have two systems in place: one under EU law (free movement) and one under UK law (the EU Settlement Scheme). For many this is confusing, however during this transition period employers have nothing to worry about.
The only thing employers need to do now is to continue to carry out right to work checks which is a duty all employers must carry out on all new employees. This requires a person to produce their passport and right to work. All EU nationals only need to provide evidence that they are indeed EEA, EU and Swiss nationals.
It is important for an employer to identify who is affected by Brexit. This is because whilst EU citizens do not need to prove their right to live and work in the UK now, even those who have already exercised their free movement rights will have to apply under the EU Settlement Scheme if they wish to stay in the UK after the transition period ends.
Therefore it is advisable to audit staff records so you know who is an EU citizen or a family member sponsored by an EU citizen. This way support and information can be provided to them on an individual basis where needed and as we get closer to the end of the transition period employers will be clearer on how to manage those individuals who still haven’t applied under the EU settlement scheme.
4. Can employers legally start collating information?
As an employer you are entitled to make plans about future staffing and avoiding any sanctions therefore, yes, you can start collating information. However this must be performed in a lawful and non-discriminatory manner. EU citizens should not be asked to provide any evidence of immigration status other than to show that they are indeed an EU citizen. Those who have applied for the EU Settlement Scheme can authorise their employer to check their settled status online, but this is optional.
Employers are not required to demand evidence of having applied under the EU settlement scheme and if you have a member of staff that is yet to apply, you must not draw any negative inference as it is not compulsory at this time.
5. What should employers do now?
It is advisable to be supportive. There is no legal requirement on employers to provide information to their staff but to manage and maintain good relations it is advisable to provide updates about Brexit and its implications for EU staff.
The Brexit process has caused huge anxiety amongst many EU citizens. Although individuals know they have to do it, they simply have no idea about how to go about it.
You may wish to arrange for lawyers to come in to discuss applications under the Settlement Scheme or other options for individuals to continue to live and work in the UK.
6. Be prepared for change
A new immigration system is currently being developed which will almost certainly bring about changes in how businesses can employ both EU and non-EU nationals from January 2021.
In fact in June 2019, the Migration Advisory Committee (MAC) was commissioned by the Government to conduct a review of salary thresholds and how a potential ‘Australian-style’ points-based immigration system would work in the UK post-Brexit.
On the 28th January 2020 the MAC published their recommendations following a consultation process which was not very much in favour of the system. However Boris Johnson gathered his new Cabinet together for the first time on the 14th February 2020 and agreed the proposed Australian style points-based system, drawn up by Home Secretary Priti Patel.
She stated that "our new immigration system will turn off the tap of cheap, foreign low-skilled labour," confirming that "from next year; all skilled workers will need to earn enough points to work in the UK. They will need to speak English, have a firm job offer, and meet the salary requirements."
As an employer it is important to keep abreast of government plans and plan ahead. For those who are currently employing EU members of staff nothing has changed for now but it is important to understand that free movement will come to an end.
Under section 2 of the EU (Withdrawal) Act 2018 (as amended by the 2020 Act)
Under section 4 of the 2018 Act, as amended
The Immigration and Social Security Co-Ordination (EU Withdrawal) Bill 2020 (announced in the Queen’s Speech)
Kezia is a Senior Associate at Winckworth Sherwood. She has been advising businesses and individuals on all aspects of UK immigration and nationality law for over 14 years having qualified as a solicitor in 2005. Kezia has an established reputation for delivering high level client service combined with clear strategic advice relating to all areas of immigration. If you are an EU national and are currently in the UK or looking to come to the UK please contact Kezia on Kdaley@wslaw.co.uk
(While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer)