BREXIT – Securing your existing EU workforce

05 December 2018

As uncertainty surrounding Brexit and its impact upon UK businesses continues, there are many questions that remain unanswered, and one which has loomed large for some time is that of EU workers.

Calum Hanrahan, our specialist immigration solicitor, offers his expert advice on the matter in this special blog, with specific mention of the likely impact the Migration Advisory Committee 2018 report will have on those sectors who employ low-skilled EEA nationals, such as Development & Construction and Food & Agriculture.

“Since the Brexit referendum on June 23rd 2016, businesses have become increasingly concerned about the future of their EU workforce. These concerns have understandably grown since the recommendation to the government by the Migration Advisory Committee (MAC) report, which was published on September 18th2018.

The MAC report was commissioned by the Home Secretary in July 2017 to examine the likely future patterns of EEA migration in the UK, with the final report assessing the impact of EEA migration and recommendations for the UK’s post-Brexit work immigration system.

The MAC report considers a number of issues, and for the purpose of this blog I will be focusing on those affecting the so called lower-skilled EEA workers and the real concern within the two sectors mentioned above.

The MAC report has recommended the abolition of free movement for EU citizens, moving to a ‘system in which all migration is managed with no preferential access to EU citizens’ – with the only possible exception to this recommendation being a seasonal scheme for lower-skilled agricultural workers. It is appropriate to mention at this stage that whatever the outcome of the present issues surrounding Brexit, the Government hasn’t stated which of the MAC report recommendations will go-ahead.

It has been suggested that expanding the current Tier 5 Youth Mobility Scheme could be a route for low skilled workers who would not qualify for leave to enter under any of the other Points Based System routes available under the Immigration Rules. However, in its current form the Youth Mobility Scheme is only available for those aged between 18-30 and from a limited number of countries. In its present form the visa is only valid for up to two years, does not provide a route to settlement and cannot be applied for on multiple occasions.

Meanwhile, the report recommends that if a seasonal agriculture worker scheme is introduced, employers should pay a higher minimum wage in return for the privileged access to labour this scheme would give the sector in order to encourage increases in productivity.

It is important to note that currently non-EEA nationals seeking employment in the UK are subject to the Immigration Rules and EEA nationals are subject to less restrictive EU legislation.

So, what is the current position?

The free movement of persons is one of the core rights guaranteed in the European Economic Area (EEA) – all 28 members of the European Union plus Iceland, Liechtenstein and Norway. Additionally, Switzerland is neither a member of the EU or EEA but is part of the single market and enjoys the same free movement rights.

What this allows the EEA national is:

  • The Right to Reside in the UK for up to three months without any conditions or formalities other than holding a valid ID card or passport;
  • The Right to Reside for more than three months if the EEA national is a qualified person i.e. actively seeking work, a worker, self-employed, self-sufficient (comprehensive sickness insurance required) or a student (comprehensive sickness insurance required).
  • The Right of Permanent Residence, acquired after residing as a qualified person for a continuous period of five years.

Steps that can be taken now

At present EEA nationals and their dependants can apply for a document to confirm their right to live and work in the UK. If the EEA national has been in the UK as a qualified person i.e. worker, self-employed, self-sufficient, job seeker or a student for a continuous five-year period they are able to apply for a document confirming their permanent residence in the UK.

Once the EEA national has been issued with a document confirming their permanent residence in the UK, they will then be in a position to submit an application to naturalise as a British citizen, providing they meet a number of additional requirements.

Position Post-Brexit – Introduction of the EU Settlement Scheme

The UK government has introduced a new scheme for EU citizens and their family members, which will allow them to continue living and working in the UK after the end of the transitional period on December 31st 2020. The new EU Settlement Scheme will be fully open by March 2019 and the deadline for applying with be June 30th 2021.

EU nationals will be able to apply for Pre-Settled Status or Settled Status. Pre-Settled status will be given to those who have been resident in the UK for a period of less than 5 years. Settled Status will be given to those who have been resident in the UK for a period of 5 years. Importantly, there is no longer a requirement for the EU national to confirm they have been a qualified person. The applications are determined on residence alone.

The applications will be submitted online and the Home Office will use the applicant’s National Insurance number to carry out checks to confirm residence. In some circumstances this will eliminate the need for further documents to be provided. If further documents are required, it is expected they will be uploaded by the applicant, rather than important original documents being posted to the Home Office and only returned when the application has been considered.

The new EU Settlement Scheme, as the title suggests, only relates to EU nationals. The rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated.

Those EU nationals who have applied for a residence or permanent residence document under the current scheme will be able to transfer one document for another free of charge when the new scheme comes into force.

Organisations and businesses that rely on an EU workforce should be considering how best to retain their current workforce now. Given the recommendations in the MAC report and the Government’s introduction of the EU Settlement Scheme, replacing them will likely become difficult and expensive after the UK leaves the EU.

For further information, please contact our immigration specialist Calum Hanrahan at our Lincoln office on 01522 515954, or by email; calum.hanrahan@wilkinchapman.co.uk.


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