Despite the uncertainty surrounding Brexit, there are some steps employers can take now in order to retain their existing workforce in the UK.
Brexit has caused a lot of concern amongst EU nationals and their employers as to what their position is in the UK and what will happen when the UK exits the EU especially in the event of a no deal. This is clearly an important issue for many SMEs, especially as sponsorship of overseas workers through the UK’s Points-Based System becomes increasingly expensive.
Importantly, free movement will continue to apply until the UK formally leaves the EU on the 31 October 2019 and in the event of a deal until the end of the transition period on 31 December 2020. The government has announced however that a tougher criminality threshold will be applied to EU citizens with criminal convictions. This will make it harder for EU nationals with criminal convictions to enter the UK after Brexit.
EU Settlement Scheme (EUSS)
In order to safeguard the rights of EU citizens after Brexit, the UK government introduced EUSS. This scheme became fully operation on 30 March 2019. Under this scheme EU citizens who have continuously resided in the UK for at least five years by Brexit day (or the end of the transitional period in the event of a deal) are eligible for settled status (also known as indefinite leave to remain/settlement). Those with less than five years residence are eligible for pre-settled status (also known as limited leave to remain). This will allow them to complete five years’ residence becoming eligible for settled status.
The Future Immigration System
The government has announced that a new, Australian style points-based immigration system will be in place from January 2021. The UK Government has clearly stated that it wishes to control migration from the EU, whilst still attracting those whom it considers have the most to offer the UK. The UK government has commissioned the Migration Advisory Committee (MAC) to review the Australian system and other international comparators to make recommendations for which system would best suit the UK to strengthen the labour market.
In the past, the MAC recommended widening Tier 2 of the points based system and bringing EU migration into this scheme with no low skilled visas except for seasonal agricultural workers. MAC advised lowering the skill level to open up more roles eligible for sponsorship but maintain the minimum salary levels with no regional variations and maintain the current Immigration Skills Charge. It is highly likely therefore that the UK will introduce measures along the lines of MAC’s recommendations. The costs associated with using Tier 2 will be prohibitive especially for SMEs and the lack of low skilled visas will be very problematic for certain sectors such as retail and hospitality.
EU citizens and their close family members moving to the UK after Brexit who wish to remain beyond 2020 will need to apply leave for leave to remain under the European Temporary leave to remain (Euro TLR) Scheme. Successful applicants will be granted a period of 36 months leave to remain. This will serve as a transition period for employers who wish to employ individuals from the EU before the new immigration system is introduced from January 2021.
EU citizens holding Euro TLR will be able to count time spent under this category towards the qualifying period for settlement if they switched into a route that leads to settlement under the new immigration system.
- Employees should apply for Settled status if they have lived in the UK for a continuous period of 5 years or Pre-settled status (limited leave to remain) if they have lived in the UK for less than 5 years under the EUSS. The deadline for making these application is currently 30 June 2021 (if the UK leaves with a deal) or 31 December 2020 (if the UK leaves without a deal).
- Settled status is confirmation that the EU national has indefinite leave to remain in the UK and they are a permanent resident of the UK. Individuals who are granted indefinite leave to remain will not be subject to immigration control and will have the right to reside and work in the UK on a permanent basis after Brexit.
- British citizens who are living and working in another EU member state should also be able to qualify for permanent residence in the same way an EU national would qualify in the UK. The process will vary slightly from country to country but the principles are the same.
- Some EU countries such as Germany, do not allow dual nationality with a country outside the EU. If this is the case, for those who would like to apply for British citizenship, their application would need to be made before Brexit and this should be urgently looked into as applicants must have acquired indefinite leave before they can make this application (see below)
- Employers should consider their recruitment needs and whether this needs to be brought forward and staff relocated to the UK or out of the UK to Europe either before Brexit or before the end of the transitional period.
- It is possible for an EU national to acquire British citizenship through residence. After they have held permanent resident/settled status in the UK for a period of 12 months, they may apply to become a British citizen. The process is called ‘naturalisation’ and requires applicants to meet residency requirements. Taking British citizenship does not mean the place of domicile is changed.
- It may also be possible for British nationals to acquire nationality in their EU country of residence. Nationality law does differ from country to country but in most EU countries it is usually possible to acquire citizenship after 5 or 6 years residency
- Those British nationals with ancestry of another EU country might also able to acquire citizenship e.g. through a grandparent who was born in Ireland.
- Most EU countries allow for dual nationality as does the UK. However, some countries do restrict dual nationality e.g. Norway and the Netherlands, so applicants should always check first that they can acquire another nationality with their own national authorities.