Jonathan Beech: Why Brexit confusion is damaging workforces

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Why Brexit is damaging to workforces

During another week of intense Brexit discussions and negotiations, Jonathan Beech, Managing Director of Migrate UK immigration law firm, discusses why the delay in exiting the EU is causing a major skills crisis, threatening our future workforces.

Last year Migrate UK research found that workers were leaving the UK mainly because of an uncertain future and a lack of clarity over immigration rules, according to 67 per cent of HR directors polled.

Fast forward to March 2019 and EU net migration has fallen to its lowest since 2009 and the Labour Force Survey (October to December 2018) showed 61,000 fewer EU citizens working in the UK than a year earlier. We too have seen a six fold increase in enquiries from individuals nervous over their future and organisations seeking advice on ways to secure the status of their EU workers in the UK.

Over 1000 days since the Referendum and a delay to Article 50 continues to fuel uncertainty so, what can employers do to retain and recruit EU citizens?

Employers should firstly identify current and future EU workers (including those from Norway, Iceland, Lichtenstein and Switzerland), and provide reassurance. Deal or no deal the freedom of movement rights are to be protected for EU workers present in the UK prior to the UK finally leaving the EU. Irish citizens are outside the scope of the UK’s exit and therefore fully protected. However, an application procedure will be required at some point to secure their status beyond any ‘transition’ period (likely to be up to 31st December 2020 or later). The type of application will depend on how long the employee and each family member have been in the UK and their future plans.

EU Settlement Scheme

The European Settlement Scheme, a digital process for EU citizens to apply for ‘pre-settled’ status (having been present in the UK for less than five years) or ‘settled’ status ( present for at least a consecutive five year period) is due to go fully live at the end of March. This scheme will be free of charge and is written into UK law so open to all EU citizens and their non-EU family members as long as they hold a biometric identity document. In most cases an individuals’ identity and residency is considered without sending physical documents to the Home Office with decisions being made around seven days.

For those planning on naturalising as a British Citizen and have been in the UK for a minimum of five years, applying for permanent residency under EU law is a better option. Permanent residency (EU terminology for settlement) can be backdated to when an applicant has completed their five continuous years in the UK as a qualified person (employee, self-employed student, self-sufficient, registered work-seeker). This can help because unless the applicant is married to a British citizen, they need to have had settled status / permanent residency for at least 12 months before they can qualify to Naturalise as British. Decision times are, on average, around 4-12 weeks currently and there are some drawbacks – physical and original documents must be sent to the Home Office, a relatively lengthy online application form needs to be completed, and there is a fee of £65 per person. Also, before applying check with your own government first to ensure they allow dual / multi nationality.

EU citizens entering the UK

The above is all positive for EU citizens present in the UK before a designated cut-off date (still to be decided), but what happens to those entering the country for the first time after this date? Under a deal scenario (still being considered), those EU citizens entering the UK prior to the current 31st December 2020 transition period will still benefit from existing freedom of movement rights. If it’s a no-deal, these rights will be revoked from the date the UK officially leaves causing a headache for many employers, unable to commit to staff permanent positions. The Home Office is to also introduce a ‘European temporary leave to remain’ status in the event of a no deal, to be operational whilst the UK finalise a new ‘skills-based’ immigration system. This is a non-extendable immigration status that should be applied for within three months of an EU citizen entering the UK for longer term stay and is valid for three years to allow applicants to work. Settlement is not an option and should the EU citizen wish to stay longer, they will need to meet the requirements of the heavily updated UK immigrations rules.

Questions over the Immigration System

The immigration White Paper, published December 2018, outlined the Government’s plans for the system, including minimum skills levels for overseas employees (from RFQ Level 3 upwards). Whilst this certainly helps when planning future talent, unless exemptions apply the minimum salary was originally set at £30,000 but this has been dismissed and is currently under discussion. Employers of key workers plus those in hospitality, construction and agriculture will wish clarity on this quickly. Another administrative burden is the need to apply for a Sponsor License to employ overseas workers that qualify for a vacancy in the UK. There are currently around 30,000 businesses in the UK that hold a sponsor license but with EU citizens requiring sponsorship in the future, this number will likely increase ten-fold. The White Paper has alluded to simplifying the sponsor license process during the transition phase which could include making more of the processes digital. At present, any business of any age can apply as long as they have a genuine vacancy and can prove they are established e.g. they have a UK bank account, are registered with HMRC and have Employers’ Liability Insurance.

Think ahead. The start of the process – from the date when the employee receives permission to work – can take three months, causing stress to employer and prospective employee with some at risk of moving to another job offer if there are delays. Should you have skilled vacancies and believe there is a chance a ‘settled’ worker might not be identified, apply for a licence before identifying the candidate so you’re in a much stronger position to fast track the process and secure the talent you need.

Whether or not Theresa May can get their Brexit deal through still remains to be seen but applying for a sponsor license, identifying EU staff, and encouraging applications under the new EU Settlement Scheme are just some of the ways businesses can take back control over the future of their workforce during these uncertain times.

Interested in immigration for recruiters? We recommend Immigration for Recruiters: Right to work in the UK training day.

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About Jonathan Beech

Jonathan Beech is Managing Director of Migrate UK, a law firm specialising solely in immigration law for organisations and individuals. Jonathan has over 20 years' experience in the immigration sector. Prior to setting up Migrate UK in 2004, he gained extensive experience working and consulting in UK immigration for the UK Border Agency and two of the ‘Big Four’ global advisory firms, Ernst & Young and KPMG.

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