Brexit issues

A major concern is the question of what will happen to the right to employ European nationals following Brexit. If continued free movement isn’t agreed, it’s widely accepted that it is not in anyone’s interest (the employee’s, the employer’s, or the Government’s) to require EU migrants to leave the country. It’s very likely that there would be an amnesty whereby existing EU migrants could stay, for a significant period of time, in return for not requiring UK citizens living and working in the EU to return to the UK.

In the longer term, it is clear that the UK will introduce measures to protect its borders to restrict the rights of free movement within the EU. If a work permit scheme is applied to all EU workers, it will be harder to recruit the staff needed in major cities, with a risk of staffing shortages if this is implemented.

An important issue to note is that EU workers who live in the UK before Brexit and who have exercised Treaty rights for five years in the UK should qualify for permanent residence if they meet certain conditions. As permanent residents, they would be exempt from immigration control when this is introduced. It is therefore advisable for these employees to make their permanent residence applications now or as soon as they are eligible. For those EU staff members who have not reached the five year point yet, it is advisable for them to apply for an EEA Registration Certificate as proof of their status in the UK under EU law. This is because when immigration control is introduced when we Brexit, EU workers here before a certain cut-off date will be exempt from immigration control and it is important for these employees to be able to establish when they came to the UK.

Wider market issues

Immigration Act 2016

Makes significant changes to right to work checks and penalties. In particular, this gives the Home Office power to temporarily close business premises as a result of failure to comply with immigration law by serving an Immigration Compliance Notice. This is coupled with an increase in enforcement activity by UK Border Force and more right to work related audits and spot checks and an increase in the issuing of Civil Penalty Notices for right to work breaches. We can help to ensure that your documentation and processes are as robust as possible and regular training and relevant updates will be important to continue the protection in this area.

Changes to the Immigration Rules

There are also significant changes to the sponsorship of overseas workers in the UK which came into force on 24 November 2016 and 6 April 2017, including raising the minimum salary thresholds and introducing a new Immigration Skills Charge. The main changes are:

  • Salary threshold for experienced hires in Tier 2 General is now a minimum salary of £30,000 per annum (or the salary in the SOC codes if higher)
  • Increased salaries in the SOC codes (on average an increase of several thousand pounds)
  • High earner salary threshold for Tier 2 (General) is now £159,600 per annum
  • New Tier 2 ICT high earner salary threshold of £120,000 per annum
  • Tier 2 General advertising in Universal Jobmatch is mandatory for roles paying less than £73,900 per annum
  • Removal of requirement for employee to have 1 year’s minimum previous employment for Tier 2 ICT where the role pays £73,900 or above
  • Tier 2 ICT Short Term and Tier 2 Skills Transfer visa categories are now closed
  • Unrestricted Certificates of Sponsorship can be assigned with no prior Resident Labour Market Test where there is relocation of a high value business to the UK or a significant new inward investment project, where the sponsor is a newly-registered sponsor (within the last 3 years) branch or subsidiary of an overseas business and the relocation or inward investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs. Sponsors in such cases will be exempt from carrying out a Resident Labour Market Test and from the requirement to assign a restricted Certificate of Sponsorship under the Tier 2 (General) limit
  • A new Immigration Skills Charge of £1,000 for each year the worker is sponsored (or £364 for small businesses) e.g. a 5 year sponsorship and visa would result in a £5,000 charge.

Workforce diversity and supporting EU national employees

In the current political climate, and especially in London, those employers who are seen to be celebrating the diversity of their workforce and the open, international outlook of their business would be seen as a welcome and refreshing change to some of the current negative political rhetoric and media headlines. Of course, experience has shown the importance of having robust systems in place to support this approach and ensure that all staff are lawfully employed and the appropriate records are kept to evidence this.

All employers should be mindful of the anxieties existing staff may be facing, especially those who are EU citizens and who may be concerned about their ability to remain in the UK. Attracting and retaining talent is always a priority and will become even more so in the face of possible future labour shortages.

With the above in mind, we would suggest that it may be worthwhile providing current EU national key employees with some form of additional support. For example, we are running a Brexit-themed service for employers which includes a presentation to staff on the current situation for EU nationals, advice on how to secure their immigration status and discussion of the likely changes that will occur as a result of Brexit. This can be combined with one-to-one clinics if employees would like further assistance with their own individual situation and/or further legal assistance supported by the business. We have found that employees have been incredibly appreciative of their employers taking the initiative and providing such additional support. It reflects well on the employer, showing them to be proactive and engaged with their employees’ concerns.