Many businesses are questioning what action they need to take in relation to European Union (EU) and European Economic Area (EEA) nationals that are working in their business, after we leave the EU on the 29th March 2019.
If you employ workers from the following countries, they will be affected by Brexit:
Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Iceland, Liechtenstein, Norway and Switzerland.
The current position
EEA Nationals already in the UK
The government has expressed that it will secure the certainty for EEA nationals already in the UK, so your EEA National migrant workers will not need to leave the UK after Brexit.
However, you need to consider here the two types of EEA National who are already in the UK that are working for you and their subsequent position:
1. Those that can apply for ‘settled status’ under the EU Settlement Scheme or may already have it. In order to qualify for ‘settled status’, they must have been living in the UK for 5 years by the end of 2020, be able to prove their identity, and state whether they have any criminal convictions. These people are able to reside in the UK permanently and can apply for British Citizenship.
2. Those without ‘settled status’ before the end of 2020. These people are likely to be moderately unsettled by Brexit however their status will be protected to an extent. The position currently looks like they will be able to apply for temporary status to take them to the 5 years they need to be able to apply for settled status.
You need to know…. After 29th March 2019, existing residence documents will no longer be valid, so you should encourage employees who are eligible for the new ‘settled status’ (previously Permanent Residence) to complete their application already. The government is accepting applications now.
EEA Nationals not in the UK by 29th March 2019
For employee’s wanting to come to the UK or if you are considering employing someone that will not be in the UK by 29th March 2019, you need to consider the following:
1. It is planned that there will be a ‘grace period’ and ‘temporary immigration system’ in which EEA Nationals can come across to the UK on the same terms as now.
2. After this grace period, there will be a new immigration system expected around 29th March 2021.
What you should do to prepare
1. Communicate the facts to your employees
You can use the governments ‘Employer toolkit’ to provide the facts to your employees on the EU Settlement Scheme. The toolkit consists of materials to provide to them to help them with the application for ‘settled status’.
The best way to use the toolkit is to read the guide and then download the materials stated within the guide.
The toolkit consists of the following, that you can provide to your employees:
You can find the guide to using the toolkit here.
2. Conduct thorough right to work checks.
This is an opportunity to make sure that your right to work checks are as tight as they can be.
You need to see the original document, obtain a copy and store the copy in their personnel file. You need to do this for UK citizens too.
You can see what documents you should be checking and retaining a copy of here.
For those on time-limited documents such as Visa’s or residence permits (non-EEA Nationals), you may need to end their employment unless they can prove that they have extended this past the Brexit date already or applied for it to be extended.
The right to work documentation for non-EEA Nationals will not change post-Brexit.
If someone can not provide you with their right to work documentation, regardless of their Nationality, you need to consider ending their employment as they could be an illegal worker. Fines for illegal workers can be up to £20,000 and HMRC audit for right to work documentation.
3. Understand the current status of your employees
I.e. understand whether or not they are eligible for the ‘settled status’ and if not, what their plans are. That way, you can both support them in the transition process and plan your future workforce by knowing if employees are likely to leave the UK or not.
As we do not know how the temporary immigration system will work or what the new residence documents will be like, you need to understand the status of your employee’s to ensure you can obtain the correct residence document once you are aware what that will be, either as part of the new immigration system or the temporary one.
4. Plan your future workforce
From March 2021, it will be more difficult to employ EEA Nationals, we predict the process will be similar to employing people outside the EEA as it is currently.
You need to start to put together a recruitment strategy now if your workforce is formed largely of EEA Nationals, especially of temporary status e.g. farm workers during harvest.
If you have employees who are planning on returning to another country within the EEA, you may not be able to continue to employ them on the same terms, as if they are completing work remotely from a country outside the UK, they will be entitled to different rights.
5. Support your employees
If you fail to support EEA Nationals throughout the Brexit process and the subsequent application process you may find they do not choose to remain in the UK and in your employment.
The best way to support your workforce is supporting them with applications and reassuring them that Brexit does not mean they have to leave the UK.
For any help or guidance on conducting your own internal right to work audit or for answers to any employment related questions arising from Brexit, get in touch with our employment law experts on 0114 3032300 or email [email protected]