Brexit employment considerations

by | Oct 17, 2019 | Brexit, Employment Law

If we leave the EU with a ‘no deal’ you will have to think about a couple of different aspects in relation to your employees:

    • If you are sending your employees to work in other countries in the EU, including Iceland, Lichtenstein, Norway and Switzerland, you will need to check whether the employee is going to need a visa, work or residents permit, for the services that you are providing or the placement of the employee. You have to comply with the immigration controls in the country where the person is visiting.  In the case of certain professionals, they will need to have the UK professional qualification officially recognised to carry out that profession in the other country. The list of regulated professions can be found on the website ec.europa.eu under the heading “regulated professions database”.  It can apply to such things as architects, medics, vets, etc. There are also specific rules relating to auditors and lawyers. 
    • Workers that are placed in other countries have to make social security contributions in those other countries, even though you are paying National Insurance in the UK. www.gov.uk has more information about this.
    • You also need to check if your employees need a visa or work permit to stay working here legally.  People who are already here as at 31 October 2019 can stay provided they have been through the EU Settlement Scheme by 30 June 2021. You may need to assist your staff with this process especially staff who are not computer savvy as there are widespread reports of people only being given Pre-Settled Status (which means they do not have long-term permission to stay yet), and people struggling to put together the right documentation. The sooner we can help these people, the sooner their position will be resolved.

Summary of immigration position:

EU citizens resident in the UK before Brexit and their family members are eligible to apply to the EU Settlement Scheme to obtain a UK immigration status which will enable them to stay in the UK. However, in the event of a no-deal Brexit, they must apply for status under the EU Settlement Scheme by 31 December 2020, as opposed to 30 June 2021 if the UK leaves the EU with a deal.

EU citizens moving to the UK after Brexit

For a transitional period after Brexit until 31 December 2020, EU citizens and their family members will be able to move to the UK and live, study and work as they do now. They will also be able to evidence those rights using their passport or national identity card. If they wish to stay beyond 2020, they will need to apply for a UK immigration status granting them permission to stay. Otherwise, they will need to leave the UK.

European temporary leave to remain (Euro TLR) 

One option for EU citizens moving to the UK after Brexit will be the new, voluntary, European Leave to Remain (Euro TLR) scheme. Successful applicants to the Euro TLR scheme will be granted a period of 36 months’ temporary leave to remain in the UK, running from the date the leave is granted. The application process is likely to be similar to the EU Settlement Scheme application process, involving online identity, security and criminality checks. There will be no fee to apply and successful applicants will be granted digital status.

Euro TLR status holders will be able to:

    • Work in the UK.
    • Use the NHS.
    • Enrol in education or continue studying.
    • Access public funds such as benefits and pensions, if eligible for them.
    • Travel in and out of the UK.

Future immigration system

Alternatively, EU citizens moving to the UK after Brexit will need to apply for status under the UK’s future immigration system, expected to be introduced from January 2021. Details of the new immigration system are expected to be confirmed soon.

The benefits of obtaining Euro TLR immigration status

If the person subsequently qualifies for leave to remain in the UK under the future immigration system in a route that leads to settlement (indefinite leave to remain), any time spent in the UK with Euro TLR immigration status will count towards the qualifying period for settlement.

The person will only be required to apply for leave to remain in the UK under the new points-based immigration system when their 36 months’ Euro TLR leave expires. This means that they can remain in the UK beyond 31 December 2020 even if they do not meet the requisite criteria to qualify for leave under the new immigration system.

Third-country family members accompanying EU citizens to the UK

EU citizens who move to the UK after Brexit may be accompanied by their non-EU citizen direct family members (such as their spouse, civil partner or child), and extended family members as now. They will need to be in possession of a valid national passport and an EEA family permit and will be able to stay in the UK until the end of 2020.

Only “close” family members (spouses, partners and dependent children under 18 (a much narrower definition than under the existing Immigration (European Economic Area) Regulations 2016)) will be able to apply for Euro TLR if their EU citizen sponsor has applied under the scheme. If successful, they will be granted Euro TLR for a period that does not exceed the end date of the Euro TLR granted to their EU citizen sponsor. Any family member who does not obtain Euro TLR by the end of 2020, and who does not otherwise have a right to remain in the UK, will be expected to leave the UK at that point.

Enforcement

In the event of a no-deal Brexit, EU citizens and their family members who move to the UK after Brexit will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be in the UK unlawfully and will be liable to enforcement action, detention and removal as an immigration offender.

EU citizens and their family members who are resident in the UK before Brexit are able to apply for immigration status to remain in the UK under the EU Settlement Scheme but must do so by 31 December 2020.

Employers, landlords and other third parties will not be required to distinguish between EU citizens who arrived in the UK before and after exit day until the future immigration system is introduced from 1 January 2021. Until then, checks on, for example, an EU citizen’s right to work or rent, will be undertaken as they are now, and all EU citizens will be able to evidence their rights using their passport or national identity card. Alternatively, if they wish to do so, they will be able to use their digital status, granted under the EU Settlement Scheme or the Euro TLR scheme. Non-EU citizen family members will be able to rely on a biometric immigration document to prove their entitlements, also via the digital status checking service where they wish to use this.

From 1 January 2021, employers, landlords and other third parties will need to check that, in respect of any new recruitment or new provision of service, an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. This check will be undertaken when that individual applies for a new job, tenancy or bank account, for example. It will not be done retrospectively.

Potential illegal employment issue

The responsibility under these arrangements will be on the EU citizens and their family members who arrive in the UK during the transition period to apply for leave (under the Euro TLR scheme or the new immigration system) if they want to stay in the UK beyond 31 December 2020. If they do not apply by that time, in principle they would be working illegally, but the employer will have no obligation to check that, because it will still be able to employ someone based solely on their EU passport if it was checked before their employment started during the transition period. At present, that would be the only right to work check required. 

Other proposals

The government will also introduce some specific changes, reflecting the fact that the UK is no longer part of the EU. These include:

Applying tougher UK criminality thresholds at the border.

Deporting more EU citizens who commit crimes in the UK.

Removing the blue EU customs channel, requiring all travellers to make a customs declaration by choosing either the green or red channel.

Removing the rights for post-exit arrivals to acquire permanent residence under retained EU law, and the rights for UK nationals who move to the EU after exit to return with their family members without meeting UK family immigration rules.

Introducing blue UK passports starting from the end of 2019.

Phasing out the use of EEA national identity cards for travel to the UK. This will happen during 2020.