In September, the Chartered Institute of Personnel and Development published a report which found that 56% of employers surveyed did not believe they had sufficient information to devise post-Brexit hiring strategies. Indeed, 58% stated that they had either never heard of the government’s immigration white paper or had heard of it but knew nothing of the details.
What, then, should UK businesses which employ migrants be doing to prepare for EU withdrawal? The good news is, despite another chaotic period, not much has changed. By staying up to date with events, understanding the possible Brexit outcomes, and having contingency plans in place for each scenario ahead of time, businesses can remain nimble and avoid surprises.
On 17 October the prime minister brought back a renegotiated Withdrawal Agreement. This was voted down in parliament by a narrow majority who favoured an amendment requiring parliament to first review and pass legislation enacting Brexit before it could approve the agreement.
This served to stall a vote on Boris Johnson’s deal beyond the deadline imposed by the EU (Withdrawal) (No. 2) Act 2019. Under the provisions of this law, if parliament did not approve a withdrawal deal or no-deal Brexit by 19 October, the prime minister was obligated to request an extension from the EU to 31 January 2020.
Following the vote, Johnson eventually sent an unsigned letter to the EU requesting an extension, accompanied by a second, signed note expressing opposition to such a delay.
On 22 October, though Johnson’s Brexit bill won Commons approval to move to the next stage, MPs rejected the government’s accelerated timetable for passage. This was a significant defeat for the PM, who claimed he would pull his Brexit bill and seek a general election if parliament rejected the timetable and the EU granted the extension request. The EU has agreed to a flexible extension up to 31 January 2020 to allow for elections to take place.
Understanding the spectrum of realistic withdrawal scenarios, and the effect of each on migrant employees, is important for businesses to prepare.
In a no-deal withdrawal, free movement in the UK will end on the date of Brexit. EU nationals resident in the UK before the withdrawal date will be eligible to apply for immigration status under the EU Settlement Scheme (EUSS). Under the EUSS, EU nationals with at least five years’ continuous residence in the UK may qualify for settled status, enabling them to continue to live, work and reside in the UK much as they do now. Those with fewer than five years will qualify for pre-settled status, allowing them to reside for the time needed to qualify for settled status. The deadline for EUSS applications in a no-deal scenario will be 31 December 2020.
EU nationals arriving after Brexit who wish to remain in the UK beyond 31 December 2020 will need to apply for European Temporary Leave to Remain (Euro TLR). Successful applicants will be granted leave for 36 months and the deadline for applications will be 31 December 2020.
Additionally, the government announced plans for an Australian-style points-based system that would apply to EU and non-EU migrants arriving after 31 December 2020. The Migration Advisory Committee recently issued a call for evidence on the new system and more specific details are pending.
Withdrawal with a deal
If the UK leaves the EU with the Withdrawal Agreement recently negotiated by Johnson, EU nationals will have until 31 December 2020 to be resident in the UK in order to qualify for immigration status, and until 30 June 2021 to apply for that status under the EUSS. During the transition period, from the date of Brexit until 31 December 2020, free movement rules would remain in force.
As with a no-deal Brexit, a points-based immigration system is planned to be in place for both EU and non-EU nationals arriving from January 2021 onward.
It is possible that the UK could decide to remain in the EU. This only seems realistic if, for example, the Liberal Democrats gain an overall majority at the general election, or if Labour takes power and the outcome of its promised referendum is to remain. Under this scenario, while the UK would retain free movement, the new government could choose to implement significant immigration system reforms in as-yet unanticipated ways.
Identify migrant employees. Knowing which staff will be affected by post-Brexit immigration policy changes, and how, will help determine how best to prepare.
Follow relevant Brexit news. Anticipating how changes will affect the business and diarising important dates and deadlines will prevent employers from being blindsided.
Communicate immigration-related Brexit updates to affected employees as needed.
Where appropriate, help EU staff with EUSS or Euro TLR applications to ensure a smoother transition.
Consider obtaining a sponsor licence. If a business already has one, review whether future hires might require licences in different tiers or categories.
Review how and when right-to-work checks may change based on the Brexit outcome.
If the UK leaves the single market, hiring EU nationals will become more costly and time-consuming. Some employers may wish to accelerate plans to hire additional EU staff.
Laura Devine is the founder of immigration law specialist Laura Devine Solicitors