EU nationals play an important role in the UK workforce, particularly in the technology sector.
We know employers are concerned about how best to retain their existing employees and whether their ability to recruit in the future will be hindered.
Although we will leave the EU at 11pm on 29 March 2019, there is a proposed deal which envisages a transition period until 31 December 2020. EU free movement rights would continue in full until this date and employers would be able to recruit EU nationals as normal until then.
Any EU nationals who are living in the UK lawfully before 31 December 2020 will be allowed to remain here. They will need to document their stay by 30 June 2021. The government has published details of a new settlement scheme, which is based on residence, rather than exercise of EU Treaty rights. For more information on this scheme please see EU settlement scheme – FAQs.
Whilst the government is encouraging EU nationals to wait for the new scheme to be launched in March 2019, many are still choosing to apply for a permanent residence card now. This may be because they wish to become British citizens before we leave the EU. In which case, under current naturalisation rules, they are required to hold a permanent residence document first. It is possible for permanent residence cards to be backdated, whereas this will not be permitted under the settled status scheme.
From 1 January 2021 a new immigration system will be in place, however, we still don’t know what this will look like. The government’s white paper regarding an Immigration Bill has been delayed, and at the time of writing, this article has still had not been published.
However, we do now have a report from the Migration Advisory Committee (MAC), which makes recommendations to the government regarding immigration policy. This suggests that there should not be special treatment for EU nationals, although this may be included in any future trade deal. The MAC is in favour of high (and possibly even medium) skilled immigration, subject to certain minimum pay thresholds, but suggests low skilled and low paid immigration should be curtailed.
Many roles in the technology sector are recognised as being highly skilled and, generally, competition for staff means pay rates are high. Therefore, it seems likely that these roles will qualify for visas under the new regime.
Employers are likely to be pleased with the MAC’s suggestion that the bureaucratic Resident Labour Market Test process should be abolished or reduced. However, there are likely to be budget concerns regarding the prospect of having to meet visa costs for a higher percentage of staff. Even if individuals are asked to pay for their own visa and Immigration Health Surcharge, the sponsoring employer would still need to pay the Immigration Skills Charge as is currently the case for non-EU nationals. For medium/large employers this is £1,000 per year of the visa.
What to do now
The priority must be to ensure that your existing workforce knows they are valued and that you wish to retain them. Employers do, however, need to be careful about any guidance they provide. This is because immigration advice is regulated and it is an offence to provide immigration advice if you are not qualified to do so.
A good start would be to share this article and to point employees to the wealth of information available online, including the government website.
If you wish to go further, then you may be interested in the in-house seminar we offer, which provides information to EU nationals about what is happening, what their options are, explains what we would do in certain typical situations, and sets out in generic terms how the new settled status scheme works and how to apply for permanent residence and naturalisation as a British citizen.
Of course, we also offer individual advice as appropriate. This can range from analysis of someone’s situation if they have a more complex case, to preparing applications on their behalf, to a simple checking service, for those who wish to reduce costs and prepare their own application but would like the comfort of knowing everything is in order before they apply.
Employers should consider whether they would support employees with the cost of the applications required to secure their status in the UK, or perhaps with loans if appropriate. Applications for permanent residence and the new settled status cost £65 per person. The fee for naturalisation is £1,330. Before applying for naturalisation employees will need to have passed the ‘Life in the UK’ test, which costs £50.
Prudent employers will also be conducting a workforce modelling exercise to consider their future needs and how these might be met:
- are increased budgets required for relocation costs?
- are there current employees who should be encouraged to develop existing skills?
- is there scope to use the apprenticeship levy to train more apprentices?
In particular for the technology sector – does all of the work need to be done in the UK or would agile working allow recruitment of new staff based abroad? If so, how would that be managed and what are the tax and social security implications?
The most creative employers will also be making sure they understand what other visa options might be available to their staff. There is a particular route: Tier 1 Exceptional Talent, which is designed to bring digital technology talent to the UK, by obtaining endorsement from Tech Nation. This scheme is still underused and employers in the technology sector should consider if it might apply to their prospective recruits. Those who get to grips with it now are likely to have an advantage in the fight for future tech talent.