As of 11pm 31 January 2020, the UK will leave the European Union. It’s really happening, so here are some key areas Tier 2 sponsors should consider:
Keep track of Brexit developments
Currently the UK has two systems in place: one under EU law (free movement) and one under UK law (the EU Settlement Scheme).
Free movement for EU nationals is automatic. On entry to the UK, EU nationals and employers do not need to do anything from an immigration perspective (although it is wise to carry out a right to work check to avoid sanctions if it turns out that a passport or ID document is fake).
As you are aware, 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. Once the UK leaves the EU with a deal on 31 January 2020, EU Citizens must apply under the Settlement Scheme by 30 June 2021. This is the case even if they have already obtained a document to evidence their free movement rights, i.e. Permanent Residence.
Work out who is affected by Brexit
Employers will be able to ask for appropriate evidence of status once the government applies illegal working legislation to EU citizens, from 30 June 2021. The collation of employee data must always be performed in a lawful and non-discriminatory manner. It is important to remember, until the government formally changes its position on the prevention of illegal working, 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. As an employer, you are not entitled to demand it and you must not draw any adverse inference if an employee who is entitled to apply under the scheme does not demonstrate that they have done so. Right now, the Settlement Scheme is voluntary.
Be prepared for a new cliff edge at the end of 2020
While the manner of the UK’s withdrawal from the EU now appears to be settled, there is still a risk that an agreement on the future relationship may not be reached by the government’s self-imposed December 2020 deadline.
From an immigration perspective, what all employers need to remain focused on is the fact that if the UK and the EU are unable to reach an agreement in the future, this will not affect EU staff members who are already employed in the UK before 31 December 2020. They will still be able to apply to stay under the EU Settlement Scheme.
Explaining this to staff really helps to reduce anxiety that something may happen overnight that could remove their ability to live and work in the UK. It won’t.
But if there is no deal on the future relationship agreed by the end of 2020, and no extension of the transition period envisaged by the Brexit withdrawal agreement, then the default is the complete end of free movement. New arrivals from the EU would come under the same visa rules as non-EU workers from January 2021.
Here’s a link to the employer’s toolkit to further support you in the use of the EU Settlement scheme.
Keep an eye on the new immigration system
Finally, a new immigration system is currently being developed. This will almost certainly bring about changes in how employers employ both EU and non-EU nationals from January 2021.
Recently, the Home Secretary set out plans for a new single, skills-based immigration system, removing the annual cap on the number of work visas issued, widening the skills threshold to include people with qualifications equivalent to A-levels and ending the resident labour market test requirement.
In addition, there will be a new route for workers at any skill level for a temporary period of 12 months. The 12-month visa will provide access to the labour market but will not permit recourse to public funds, or allow dependants to accompany the worker, also the route does not lead to settlement. Furthermore a 12-month cooling off period would apply once the 12 month visa expires.
It is also proposed to allow Tier 4 students a stay of up to six months in the UK following their studies, to enable them to find work. PhD students may be permitted to stay for 12 months to look for employment.
Employers may elect to contribute to the design of the new immigration system by engaging with the Migration Advisory Committee (MAC) when it asks for evidence and engaging as stakeholders with the Home Office. We will ensure you are kept informed of any consultations launched by MAC to allow ample time to participate, should you wish.