What’s changing for employers of EU nationals?

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The UK left the European Union at the end of January, some 10 months later than originally planned – and while much debate has taken place about how such an historic event will be marked, many employers will be wondering what happens next.

The simple answer is nothing – yet.

The transitional period

Following Brexit, the UK has been in a transitional period that will last until the end of 2020.

During this time the UK will continue to comply with EU law, which, from an employer’s perspective, means:

• EU free movement rules will continue until 31 December 2020
• there will be no changes to the Right of Work checks employers conduct on EU, European Economic Area (EEA) and Swiss nationals, and their family members, until 1 January 2021
• EU, EEA and Swiss nationals (and their non-EEA family members) resident in the UK by 31 December 2020 will be eligible to apply for settled or pre‑settled status under the EU Settlement Scheme (EUSS)
• the deadline for applications to the EUSS is 30 June 2021

The Government plans to introduce a new immigration system that will come into force as the transitional period ends. The Migration Advisory Committee (MAC) published a report at the end of January on minimum salary levels and how the UK may learn from points‑based immigration systems in other countries, which the Government will consider when designing its new system.

The Government announced mid-February that low‑skilled migrants won’t get visas and that visa applicants would need 70 points plus to work in the UK.

In the meantime, recruitment activity this year will be largely unaffected by Brexit, except for those situations where new employees will not start work until 2021, in which case anyone who is not a British or Irish citizen will need to prove he or she has been granted immigration permission to work in the UK.

For EU, EEA and Swiss nationals, this may be status under the EUSS, but for those who arrive in the UK from 1 January 2021, they will be subject to the new immigration system along with the rest of the world.

What employers should do now

Although not required to do so, it is best practice for employers to inform employees about the EUSS to ensure maximum awareness that some will need to make an application to continue living in the UK.

The Government has an employer toolkit that has been specially designed for employers who want to provide information to their employees about the EUSS. The toolkit – available via https://bit.ly/2Haz5AU – contains leaflets, briefing packs and fact sheets to help employers communicate accurate information on the EUSS to their employees, and can be either circulated electronically or printed out and placed in communal workplaces.

Additional information that may be worth circulating to employees can be found on the Government’s website, including a link to the EUSS application form.

Some practices may have employees who do not need to apply themselves, but have family members who will need to apply; therefore, it is suggested information is circulated to all members of staff regardless.

Conduct an audit of the workforce

The difficulties employers will face if existing members of staff are no longer able to work do not need spelling out here.

For those employers who have not already done so, it’s recommended they conduct an audit of their workforce to identify those members of staff who are EU, EEA and Swiss nationals.

To ensure those who need to apply do so, employers should ask members of staff to provide them with confirmation that they have been granted status under the EUSS. Company records can then be updated and – as the deadline approaches – steps taken to remind employees who have not applied of the requirement to do so.

This is one way employers can have some comfort that the workforce will face minimal disruption as 2021 approaches.

Employers should think about the most appropriate way of conducting such a review and communication in ways that do not fall foul of any accusations of discrimination or victimisation.

The future

From the MAC’s report and what the Government has said so far, it seems likely that employer sponsorship – similar to the current Tier 2 immigration arrangements – will continue to form the backbone of the UK’s work visa routes.

Employers without a sponsor licence may wish to consider applying for one now, particularly those who are likely to continue recruiting EU nationals in the future.

For those employers with a Tier 2 licence, they would be advised to review compliance to ensure their licence is not at risk and that it can continue to be used when the new immigration system comes into force.

• This article first appeared in Vet Times' 22 September 2020 issue (Volume 50, Issue 39, Page 10).