On October 16 the IoD’s EU and Trade Analyst Claudia Catelin sat down with Helen Smith, Immigration Solicitor at North Star Law, to discuss what business leaders should consider in regard to the impact of a no-deal Brexit on immigration and labour mobility.
IoD member surveys reveal that two-thirds of business leaders think freedom of movement within the EU is important to their business.
The majority employ EU citizens and cite skills-based concerns as a top priority that needs to be addressed in Brexit negotiations.
Whether the UK leaves the EU with or without a deal, the UK government has stated it’s still committed to ending the freedom of movement within EU. What are the implications of this on immigration, travel and labour mobility in the business community? And what do company directors need to prepare for?
Currently, all EU citizens based in the UK reside under their right to freedom of movement within the EU. Therefore they’ve not needed to provide any documentation (other than their passport) to stay in the UK.
The Government has introduced a number of schemes which are applicable to EU citizens in the UK. It is important that company directors help to familiarise their staff with these schemes.
This scheme was set up by the Home Office to register all of the EU and EEA citizens who were/are resident in the UK before the UK ceases to be an EU member. Two million people have applied under the system since it was set up in March 2019. Applicants need to provide documentation that shows they’ve been resident in the UK for a continuous five-year period.
This process is probably easiest for applicants who can have worked for five years or more on a PAYE basis. Applicants who are self-employed or have had periods out of work will need to provide more documentation.
Once approved, they’ll be given UK domestic immigration status – equivalent to indefinite leave to remain or permanent residency. This gives them the right to live and work in the UK without restriction. They’ll also be able to apply for British citizenship if eligible.
What is the main difference between settled status and indefinite leave to remain?
Indefinite leave to remain status can be lost if an EU citizen lives outside the UK for two years or more, whereas settled status can be retained if they live outside the UK for five years. It is possible for individuals who have indefinite leave to remain status to apply for, and receive, settled status too, which many immigration specialists are suggesting.
This is for EU and EEA nationals who have not yet reached a 5-year residency threshold. Applicants need to have started living in the UK by 31 December 2020 (or by the date the UK leaves the EU without a deal).
This also applies to family members (or third country nationals). If successful they’ll receive a status under domestic law that lasts for five years. At the end of the five years they can apply for settled status.
European Temporary Leave to Remain (this only applies in event of no deal and to people who arrived after a no-deal Brexit and before the end of 2020)
This is a transitional measure for EU nationals (and their family members) who want to move to the UK to live and potentially have access to benefits, before a new immigration system is brought in from 1 January 2021.
It gives successful applicants authorisation to live and work in the UK for three years.
However, it’s inferior to pre-settled status because it only lasts for three years and is based on the understanding that the holder will switch into a new category somewhere in the UK domestic system. The exact details of this are as yet unclear and it is advised that individuals apply for pre-settled status if possible.
Deadline to apply – December 2020
Right to work checks for employers
Company directors have a duty to make sure every single one of their employers has the right to work for them. But employers also need to ensure they’re not discriminating against or contravening employment law during the recruiting process – for example, in the case of an applicant who has temporary leave to remain status and is awaiting long-term status. It will be interesting to see what questions this raises over how employers will ensure they’re still able to invest in their workforce.
British nationality and dual nationality
There has been a steady increase in the number of EU nationals applying for British nationality. This will be relatively easy for them if they already have a status or permanent residency documentation.
Individuals can apply for British nationality under naturalisation, if they have settled status or indefinite leave to remain status. However, they’ll need to wait one year after they’ve received settled status. If married, they can apply straight away without waiting.
The UK’s future immigration system
The Queen’s Speech confirmed that the government will introduce an immigration bill to end freedom of movement, while laying the foundations for a ‘fair, modern and global trade system’.
Although the finer details have yet to be worked out, here is what we expect the government to plan to introduce:
- the delivery of a single global immigration system that’s based on people’s skills and experience rather than their nationality – i.e., EU citizens will no longer have preferential treatment from January 2021.
- a points-style based system where individuals will receive independent immigration status that’s based on skills and experience.
- the possibility of regionalisation – i.e., an applicant could receive more points to take their skills and experience to a part of the UK where they’re in short supply.
It remains to be seen how the specifics of a points-based system will be worked out. UK Visas and Immigration has already operated a points-based system since 2008. For example, the Tier 2 system allows individuals to work in the UK if they have a valid certificate of sponsorship from an employer who has offered them a job.
However, there is potential for compliance restrictions to be adjusted for employers under alterations, which has previously been discussed in a government white paper.
Home office – employer toolkits online https://www.gov.uk/government/publications/eu-settlement-scheme-employer-toolkit
Living in country guides – outlines the rights of UK nationals living in EU https://www.gov.uk/government/collections/overseas-living-in-guides
Local chambers of commerce
To access a recording of the webinar, click here..