Brexit & Immigration for HR Professionals

02 Jan 2019

On what basis will the UK leave the EU? How will the UK’s departure affect the remainder of the EU?

How will the Euro-zone deal with the challenges it’s facing through the German economic slowdown, Italian budgetary policy or the alleged fragility of the Irish and Greek banking systems? Uncertainty remains the order of the day – but it needn’t mean paralysis. The sky hasn’t fallen in and there are clear opportunities for HR professionals to give their businesses a positive lead.

Top Tips for HR Professionals

• Plan ahead. Recruit for skills gaps now.

• Take time to know what’s happening and understand your workers hopes and fears. Be pro-active in showing empathy and giving reassurance that migrant workers are and will remain valued and above all, welcome. This is a great time for HR professionals to demonstrate their soft skills.

• Understand the EU Settlement Scheme and how it may help your EU workers and their families. Talk to them about it, support them with it and consider paying their application fees.

• Review your organisation’s pay and benefits and at the same time review your strategies for staff development and retention. The point is to avoid finding yourself in a seller’s market with everyone else.

• Understand the Right to Work regime.

• Be alert to xenophobic banter in the workplace and deal with it appropriately and promptly if it ever happens.

Worried workers

Most migrant workers will be feeling uncomfortable whether they’re EU citizens working in the UK, or UK citizens working elsewhere in the EU. Those accompanied by families will be worried for their spouses and children as well. At the same time it’s a safe bet that EU workers thinking of coming to the UK will be given pause for thought by the Prime Minister’s remarks to the CBI on 19 November 2018 when she said:

In the future, outside the EU, immigration will continue to make a positive contribution to our national life.
But the difference will be this: once we have left the EU, we will be fully in control of who comes here.
It will no longer be the case that EU nationals, regardless of the skills or experience they have to offer, can jump the queue ahead of engineers from Sydney or software developers from Delhi.

This is a significant risk for UK businesses because discomforted workers are likely to leave when they perceive a more secure future elsewhere – it’s also an excellent opportunity for HR professionals to step up and shine.

Freedom of movement

Short term visits (both business and tourist) are mentioned in a joint political declaration between the UK and the EU that:

…mobility arrangements will be based on non-discrimination between the Union’s member States and full reciprocity.

In this context the parties aim to provide, through their domestic laws, for visa-free travel for short-term visits….

Note the tentative nature of “aim to provide”. Also note this is a non-binding political statement. That said, the nature of visa arrangements is that they are reciprocal and it seems unlikely the UK will impose visa requirements on the French, the Spanish etc. knowing those countries will reciprocate. It also seems unlikely the UK or the EU have the infrastructure to make a full visa regime work efficiently.

In the meantime, UK citizens intending to travel to the EU for short visits will be required to obtain a travel permit under ETIAS (the European Travel Information and Authorisation System). Permits will cost €7 and be valid for 3 years.

The UK Government announced its initial thoughts on this country’s future immigration system on 19 December 2018 in a White Paper entitled The UK’s future skills-based immigration system. This discusses a policy focussed on skills, a minimum salary of £30,000 and a degree of flexibility driven by political expedience. In the context of freedom of movement it says:

Everyone will be required to obtain a permission if they want to come to the UK and to work or study here.

The White Paper also says the government will consult widely about a new immigration system and has no plans to legislate or change the Immigration Rules until 2020. The implication seems to be that new rules will take effect at the end of the implementation period which is currently expected to be 31 December 2020.

The EU Settlement Scheme

This scheme was developed following the provisional agreement between the UK and the EU published on 19 March 2018. It enables EU citizens and their families already in the UK to apply for settled or pre-settled status permitting them to continue living and working here after 31 December 2020. Settled status will be a form of permanent residence. It’s a moot point whether this is actually a lesser form of revocable licence but that’s outside the scope of this paper; the message seems to be, settled means settled.

Settled status will be open to EU citizens and their family members who have been living in the UK continuously for 5 years and who started living here before 31 December 2020. Those with less than 5 years continuous residence will generally be eligible for pre-settled status which may be converted to settled status after 5 years continuous residence.

Applications for settled/pre-settled status must be supported by proof of identity and residence in the UK. There will also be a requirement to disclose criminal convictions the effect of which will be considered case by case.

Marriage to a UK citizen will not exempt EU workers from applying for settled/pre-settled status and existing EEA permanent residence documents will cease to be valid on 31 December 2020. They may be exchanged for settled status free of charge.

Applications for settled/pre-settled status will be made on-line using a PC, tablet or mobile telephone having an Android operating system. The mobile app has undergone two field trials and will open to EU citizens who hold a valid biometric residence card on 21 January 2019 as part of third public test. The scheme will be fully open by 30 March 2019.

The deadline for applications will be 30 June 2021. Anyone eligible for settled/pre-settled status who fails to apply by then will probably loose the right to live and work in the UK.

Will the UK still be attractive to EU workers?

Despite emerging economic uncertainties, some Euro-zone economies have been growing faster than the UK so may be seen as safer havens in the medium term. At the same time volatile exchange rates have and will continue to erode real pay differentials between the UK and the Euro-zone. The implication for HR is that inertia won’t keep EU workers in this country for long when the advantages the UK previously offered become less marked. Upping sticks and moving to another country holds no fears for them. They’ve done it before and they’ll do it again.

Changes in employment law

It seems unlikely Brexit will prompt significant changes in UK employment law in the short or medium terms. The EU (Withdrawal) Act 2018 maintains the status quo, and it is unlikely that rules such as TUPE, the Working Time Regulations or Maternity/Paternity Leave and Pay will be completely swept away. Brexit may stop the direct importation of EU law but this will probably only have a cosmetic impact on UK employment law during the next 5 – 10 years.

Settlement and the right to work in the UK

The EU (Withdrawal) Act preserves the status quo and that of course includes the principle of free movement. Therefore EU workers will be free to come and go until the current regulations are changed.

If there’s an exit Treaty

Assuming the agreement of March 2018 holds, free movement will in effect continue until 31 December 2020 and EU migrants will be as secure as they can be through the EU Settlement Scheme.

If there’s no Treaty

The status of those in the country on 29 March 2019 is preserved until legislation provides otherwise. In that context the Department for Exiting the European Union has published a policy paper in which it says:

…the UK Government wants to reassure EU citizens and their family members living in the UK that they are welcome to stay in the UK in the unlikely event of a ‘no deal’ scenario. The Government is adopting an approach based on the Withdrawal Agreement. We have been clear: EU citizens are our friends and neighbours, our colleagues, and we want them to stay…

…To remove any ambiguity, the UK Government guarantees that EU citizens resident in the UK by 29 March 2019 will be able to stay and we will take the necessary steps to protect their rights even in a unlikely ‘no deal’ scenario.

Protection will be given through the EU Settlement Scheme. However, in a ‘no deal’ Brexit the scheme will only apply to those in the UK before 29 March 2019 and the deadline for applications will move forward to 31 December 2020.

New EU migrant workers will be free to come here after 29 March 2019 until legislation or regulations say otherwise. However, their status will be uncertain and may depend on the nature of the immigration policy which emerges from the year long consultation the government has recently launched. That uncertainty can be removed by recruiting now and stockpiling EU workers before 29 March.

Trethowans Employment and Immigration team are ready to assist HR professionals with all UK employment law and immigration questions. Please get in touch. We have law offices in SalisburySouthamptonBournemouthPoole and Winchester to meet your requirements.


James Humphery

Senior Solicitor