Kate Palmer, associate director of advisory at law firm Peninsula Group, gives advice on preparations employers can make ahead of Brexit

With only weeks until the planned Brexit day on 31 October 2019, the nation is still in the dark over the details that will apply to the UK’s exit from the EU.

With time running out, preparations for a ‘no-deal’ Brexit are taking place. Employers should become familiar with no-deal plans to ensure a smooth transition, should this be required.

It is vital, as part of an organisation’s preparation for a no-deal Brexit, to understand the various schemes that will apply to enable the continued employment, and new employment, of EU nationals. Fines can apply to the illegal employment of foreign workers, so employers must get it right. At the same time, misunderstanding the system may deny employers skilled staff.

EU nationals in UK before Brexit Day

EU nationals who already work in the UK may continue to do so by applying to the EU Settlement Scheme. Obtaining ‘settled status’ under the scheme will allow the individual to remain indefinitely in the UK. Settled status requires five years’ residency in the UK; those who have been in the UK for fewer than five years will obtain ‘pre-settled status’. Anyone in  the UK before Brexit day can use this route to obtaining permission to stay.

EU nationals who come to UK after Brexit
Original plans would have seen freedom of movement end on Brexit day in a no-deal scenario.

However, while free movement will technically end, much of the free movement framework will remain in place for a period. Transitional arrangements mean that a Temporary Leave to Remain (TLR) scheme will allow employers to continue to fill vacancies with EU nationals who arrive in the UK after Brexit.

Applications for a TLR will be free and can be made once the scheme opens after the UK leaves the EU.  The TLR will be valid for 36 months from the date it is granted and the deadline for such applications will be 30 December 2020.

EU nationals who come to UK from 1 Jan 2021
New rules will apply to recruitment of an EU national from 1 Jan 2021. A points-based system will assess individuals on their skills and what they can contribute to the UK. Final plans have not yet been made. Individuals, who arrive in the UK after Brexit, obtain TLR status and wish to continue working in the UK once it expires, will need to qualify through the points-based system.

Evidence of right to work in UK
Employers will not be required to distinguish between EU nationals who moved to the UK before 31 Oct 2019 and those who arrived after that date but before 1 Jan 2021.

When starting a new job after Brexit, EU nationals will be able to provide evidence of their right to work using their passport or national identity card or through their digital status under the EU Settlement Scheme or TLR scheme. When the new points-based immigration system is introduced from 2021, employers will need to check, in respect of any new recruitment, that an EU citizen has a valid UK immigration status.

Key considerations

Employers should consider the following in preparation for a no-deal Brexit:

  • Communicate developments to staff and ensure staff from the EU are familiar with the EU Settlement Scheme and deadlines.
  • Audit your workforce and future needs and skills in case 2021’s points-based scheme will affect your recruitment stream.
  • Ensure understanding of the Temporary Leave to Remain system and what it means for the right-to-work checks.
  • Review immigration policies and documents that will need to be amended post-Brexit.
  • Keep up to date with how the points-based system will work.

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