Hiring EEA and non-EEA employees in a post Brexit world

November 26, 2018

In the coming months there will be profound changes to the UK’s immigration system. With Brexit fast approaching, the Government is aligning the immigration system to its long term industrial strategy. The Migration Advisory Committee (MAC), which advises the Government on migration issues, has recommended moving to a system in which all migration is managed and both EEA nationals and non-EEA nationals are subject to the same rules.

The MAC has advised that the future regime should be focussed on attracting highly-skilled workers over low-skilled workers. As part of its recommendations, the Government has been advised to expand the existing sponsorship regime currently applicable to non-EEA nationals.

The MAC has made several recommendations, notably:

  1. Make it easier for highly-skilled individuals to migrate to the UK;
  2. Abolish the current cap of 20,700 for high-skilled workers entering the UK on Tier 2 (General) visas (sponsored work visas);
  3. Expand the list of occupations and jobs which are eligible for sponsorship, in other words lower the skill level required for a role to qualify for sponsorship. This would make an additional 142 occupations eligible for sponsorship (many existing hospitality, care and retail jobs currently do not qualify for sponsorship);
  4. Retain the minimum salary thresholds in place at present;
  5. Abolish the Resident Labour Market Test (RLMT), which currently requires employers to advertise the role to the local workforce for 28 days. If the Government decides to retain RLMT, it may consider relaxing current measures, such as substantially reducing the high earner salary, and the requirement that no settled (British, currently EEA, or those holding Indefinite Leave to Remain in the UK) worker could fill the vacancy, to allow employers to appoint the best available candidate;
  6. The ability to change employer from within the UK should be made easier;
  7. If the Government is to consider a route for low-skilled migration, then it should expand the Youth Mobility Scheme which is currently only open to certain commonwealth citizens;
  8. Reduce bureaucracy and the administrative burden by reviewing the current Sponsor Licensing system and the visa application system.

If the Government decides to enact all of the MAC’s proposals, this will have the effect of making it easier to sponsor individuals in high and medium skilled jobs.  

The Government is expected to publish details about the new immigration framework before the end of 2018 and, in any case, well in advance of 29 March 2019, when the UK officially withdraws from the EU. Although the MAC has made these recommendations, it should be stressed that its role is purely advisory and the Government is yet to announce policy.  

We recommend that employers obtain a sponsor license now if they expect to bring in workers from outside the UK after March 2019. This will enable businesses to avoid the rush of license applications and the consequential lengthening of processing times when the new rules come into force.

EEA nationals

Whilst the UK Government continues to negotiate a post-Brexit relationship with the EU, it has provided clarity with respect to the status of EU nationals after Brexit. The Government has begun to roll out the new ‘settled status’ and ‘pre-settled status’ (see here) and is currently trialling these systems in selected industries (universities and NHS trusts). In summary:

  1. There will be a transition period from Brexit day, 29 March 2019, until 31 December 2020;
  2. EU citizens currently residing in the UK can continue to do so until 31 December 2020;
  3. EU citizens can also arrive into the UK without requiring a visa until 31 December 2020; and
  4. Individuals will have up to 19 June 2021 to apply for settled status or pre-settled status. In summary, those with five years of residence can apply to remain indefinitely in the UK (obtain ‘settled’ status). Those individuals with less than five years of residence can be granted a limited visa to bring their residence up to five years (‘pre-settled status’), and can then apply for permanent residence to remain indefinitely in the UK once they have been in the UK for five years.

For employers with an EU workforce or who are bringing workers to the UK, this means that EU citizens can continue to reside in or arrive in the UK until 31 December 2020. Those already residing in the UK should take steps now to obtain relevant documentation, so as to avoid delays in processing when the scheme opens to the general public. At that point those individuals with permanent residence in the UK will be able to exchange their document for the settled status.

In summary, organisations can bring their EU national workforce to the UK without requiring sponsorship until 31 December 2020. Anyone arriving after 31 December 2020 will need to be sponsored under the immigration regime then in place, details of which should be revealed in early 2019. Those EU nationals present in the UK before 31 December 2020 will have until 19 June 2021 to obtain the required status in the UK.

Businesses employing staff from outside the UK should begin short to medium term planning in order to ensure that all immigration issues are ironed out well in advance of the expected rule changes, and that they are thus well positioned to deal with these changes.

What does this mean for employers?

If you are an employer who requires clarification on what your European employees should do to retain their right to stay and work in the UK, please contact Sacha Schoenfeld. Sacha and her colleagues are very experienced in advising on these issues and know that the situation can vary for different employees, depending on their circumstances. They provide surgeries for HR teams and others, dealing with questions relating to the status of EU nationals after Brexit and the practical steps to take now.


Related pages:

Brexit Lawyers more

Business immigration more

Experts on the human side of enterprise more

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Sacha Schoenfeld
Partner
Direct dial: +44 (0)20 7614 2597
sschoenfeld@foxwilliams.com

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