Next steps: employing EU nationals pre and post-exit

 

Article 50 has been triggered and the UK will be leaving the EU. For around two million EU nationals currently working in the UK, and their employers, it is time to start planning. Failure to do so could risk serious negative consequences for both parties.

About the Author

Natasha Chell, Partner and Head of Risk and Compliance, Laura Devine Solicitors, is a specialist immigration lawyer with over 15 years' experience in UK immigration law, nationality and EU free movement.

The recent triggering of Article 50 – the legislative move that signals the start of the UK’s exit from the EU – puts into sharp focus the status of UK-based EU workers.

Britain’s economy is heavily dependent on the approximately two million EU nationals currently working in the country, and for many businesses the effect of the UK’s exit from the EU could have a serious impact on how they operate. That’s why, notes Natasha Chell, Partner and Head of Risk and Compliance for immigration specialist law firm Laura Devine Solicitors, it’s important to address the business risk now and not later – when it could be too late.

What employers need to do immediately:

  • Identify the EU nationals in your workforce and calculate the risk of losing their skills
  • Provide your affected employees with information on current Home Office application options
  • Encourage them to start collating the information and evidence required to complete these applications
  • Encourage eligible employees to apply for a registration certificate or permanent residence card as soon as possible
  • Understand the impact of the Immigration Skills Charge on your business
  • For advice on complex cases, contact an immigration law specialist

“Don’t wait until the Government announces its plans - take steps now.”

Where we are now

The recent Government white paper on the EU exit expresses the desire to stabilise the UK’s population. It also declares the intention to provide “fairness” to those existing EU nationals in the UK “whose rights and obligations will not be subject to sudden change”.

But because the paper does not elaborate on how this will be achieved, it leaves many UK businesses and their EU national employees in limbo, says Chell. She notes complications may arise if EU nationals are subsumed into the current UK immigration system as it applies to non-EU nationals.

For example, migrant sponsorship under the Tier 2 system for those seeking UK employment will see employers necessarily enmeshed in the four-yearly sponsorship licence application and renewal process.

“The irony is that right now there is more certainty for UK businesses employing third-country nationals who have immigration permission under the Tier 2 sponsorship system than for EU nationals,” says Chell.

“Employers need to be on top of these changes and planning ahead for their business needs.”

Conduct a workforce audit

“It’s advisable that employers start thinking about their exposure to the upcoming changes and begin identifying their EU national workforce,” Chell says. “Don’t wait until the Government announces its plans – take steps now.”

The degree of exposure and impact of change is dependent upon sector and industry. Certain agricultural activities and the hospitality sector, for example, are heavily reliant upon EU workers to survive.

The UK government shortage occupation list should be reviewed in light of possible changes. Employers wishing to sponsor migrants in roles on the list are not required to complete the Resident Labour Market Test, which requires an employer to advertise a vacancy within specified mediums to demonstrate whether there is a suitable resident worker who can undertake the role.

How can you support your EU employees?

From the outset, businesses should foster a supportive relationship with their EU employees during this worrying time, advises Chell. One way in which this can be achieved is through the provision of information regarding current Home Office application options. Specialist immigration law firms can offer bespoke Brexit services to help employers and EU nationals. Preparation for any of these applications is crucial, she warns.

Prepare paperwork

To provide security of residence, an EU national can make an application now for a registration certificate to confirm their right under EU law to be in the UK. And those that have been legitimately resident for at least five consecutive years should apply for a permanent residence card if eligible “sooner rather than later”, advises Chell.

“Many EU nationals may think that they have or will have acquired permanent residency before the UK exit, when in fact they may not.” For example, any break in employment during the relevant five year period could prejudice their claim.

A successful permanent residence card application requires specified documentation evidencing the EU national’s residence and activities exercising Treaty rights in the UK, such as working or being self-sufficient. Acceptable forms of evidence include proof of employment as a ‘worker’ or comprehensive medical insurance as a ‘self-sufficient person’.

However most EU nationals will not have this evidence to hand because there has previously been no mandatory requirement to obtain a permanent residence document. “That is going to change. They are going to have to become documented temporary or permanent migrants. How and when this requirement shall be implemented remains to be seen.”

Be aware of upcoming legislative changes

As of 6 April 2017, those who sponsor migrant workers under Tier 2 will be subject to the new Immigration Skills Charge. For most sponsored workers, employers will have to pay, in addition to the already significant application filing fees, up to £1000 per year per worker. If EU nationals become part of the Tier 2 system, these charges may apply to them.

“Employers need to be on top of these changes and planning ahead for their business needs,” says Chell. Immediate information is available from the UK government immigration operational guidance website.

The risk of not doing anything

Some businesses may choose to see how matters pan out over the coming months. In Chell’s view, this would be unwise. “Not just because there will be a significant volume of applications likely to be made at some point, but also, from the employers’ point of view, they risk having a depleted workforce should there be a sudden change to EU workers’ rights.”

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