2020 Brexit action for employers

Too many immigration solicitors and UK employers 2019 was a year of what ifs and maybes. That was because of the political uncertainty and election combined with the frustrations of Brexit and whether it was happening and, if so, when and on what terms. For Immigration solicitors and UK employers 2020 brings a bit of clarity. We know that Brexit is happening although we may not know the exit terms. The clear Brexit policy means that Immigration solicitors can help employers and their employees get Brexit ready and make sure that your business is as prepared as it can be for the new decade and the changing face of the UK.

Brexit and UK Immigration solicitors

London based OTS Solicitors help employers and employees with all aspects of business and personal immigration law providing the best Brexit solutions. If you have questions about how Brexit will affect your business or your employees or your recruitment plans call us on 0203 959 9123 or complete our online enquiry form.

The date – the 31 January 2020

With so many dates (and cancelled dates) buzzing round there is a sense that the 31 January 2020 is just another Brexit date without everyone fully appreciating the enormity of what Brexit means for businesses and individuals. Although the 31 January 2020 may not result in overnight dramatic changes to your business and its workforce, Brexit will do so in time. Just as importantly, those businesses who previously hadn’t felt the need to take Immigration and employment law advice, because to date they have only employed UK or EU workers, now urgently need to do so.

The Brexit timeline

There is no point in looking back at old deadlines and missed opportunities. Brexit is now all about forward thinking and planning so your business gets the best out of Brexit.

Whilst Brexit is never out of the headlines, when Immigration solicitors speak to business owners and employees there is still a lot of uncertainty over dates and what those Brexit dates mean to UK employers and EU employees.

The latest Brexit position on EU workers and the timeline is:

The current position – EU workers and non-EEA workers are treated differently as the UK is part of the EU. Under the EU treaty, EU citizens have the right to exercise treaty rights and to free movement between EU states. That means that although an employer needs to apply to the Home Office for a sponsor licence to employ a non-EEA national under a Tier 2 (General) visa, an EU citizen has the right to live and work in the UK, free of Immigration control and without an employer having to sponsor them under a Sponsor Licence and visa
Brexit on the 31 January 2020 with a Brexit deal – This is now looking like the likely scenario given the government pledge to action Brexit. If you employ EU citizens in your business then to be able to continue to employ those existing EU workers, without your business needing to sponsor them under a Home Office issued Sponsor Licence and the individual employee needing to apply for a visa, your employee will need to apply for permanent residence or Settled Status under the EU Settlement Scheme or Pre-settled Status. This is the case even though your EU employees are currently in the UK and are exercising treaty rights and free movement. The deadline to apply for Settled Status is the 30 June 2021

Brexit without a Brexit deal – If the UK leaves the EU without a deal then EU citizens will need to apply for permanent residence or Settled Status or Pre-settled Status under the EU Settlement Scheme by the earlier date of the 31 December 2020, instead of 30 June 2021. From the date of the UK departure from the EU without a deal to the January 2021, EU citizens should still be able to enter the UK to work or study without first applying for a visa or UK entry clearance. However, unlike under the current Immigration system, their stay in the UK will be limited to three months without first securing a visa. If they plan to stay more than three months they can then apply for a European Temporary leave to remain visa.

After the 30 June 2021 (or earlier if there is no deal) – If your EU worker has applied for permanent residence or Settled or Pre-settled Status prior to the deadline then you will be able to continue to be able to employ them free from Immigration control and without you needing a Sponsor Licence or the employee requiring a sponsor or visa. If your EU worker arrives in the UK after the deadline (or is in the UK before the deadline but doesn’t apply for permanent residence or either form of Settled Status) then they may end up subject to Immigration control and potentially treated in the same way as a non-EEA worker

January 2021- this date is the date of the planned introduction of a new UK Immigration scheme where the nationality of the person wanting to come to the UK will not be relevant for the purposes of Immigration control so, in other words, EU and non-EEA citizens will be treated the same when it comes to Immigration. Entry to the UK won't be based on nationality but will be based on a points-based system. That means potentially employers won't be able to recruit EU or non-EEA workers without a Sponsor Licence.

Here are our 2020 tips on business and Brexit:

1. Don’t ignore Brexit
We all now know that Brexit isn’t just going to quietly wither away. It is happening and whatever the size of your business and the geographic make-up of your staff (UK, EEA workers or non-EEA nationals employed under a Home Office Sponsor Licence on Tier 2 (General) visas) Brexit will affect you and your business.

London immigration solicitors are often told by business owners that they don’t need to worry or prepare for Brexit as they don’t ‘have that many EU workers’ but many employers haven’t audited their HR files to check where their workers are from or analysed what the effect on their business would be if their staffing levels were reduced by five, ten or even twenty percent. Even if a business owner has analysed where their workforce comes from, there is often an assumption that all will be well if their EU employees apply for Settled Status. However, even if your current EU national workers obtain permanent residence or Settled or Pre-settled Status under the EU Settlement Scheme, there is a risk that they will move to another job. After Brexit and the end of free movement you may be restricted to employing UK citizens (or those with Settled Status in the UK) meaning that, in an age of low UK Employment, your pool of talent to attract work from will be very small and may not meet your business needs.

Some business owners take the view that they will sort out any recruitment crisis when it happens but other business owners are realising that they have a short window of opportunity to take the legal and professional advice they need to get Brexit ready. Once a business realises that to maintain profits or grow, the business can’t rely on a stagnant workforce, company directors understand the need to act now to secure the legal ability (a Sponsor Licence) to recruit non-EEA workers and EEA workers who don’t have Settled Status having entered the UK after the end of free movement.

2. Take legal and professional advice
Many business owners are reluctant to take legal and professional advice thinking that they know their business best. You do. However, the implications of Brexit could be massive, for example:

• Without a Home Office Sponsor Licence you won't be able to recruit non-EEA workers under a Tier 2 (General) visa and , after the end of free movement, you won't be able to recruit EEA workers unless they came to the UK prior to December 2020 and have permanent residence, Settled Status under the EU Settlement Scheme or Pre-settled Status
• Other businesses and employers will be ‘in the same boat’ unless they have secured a Sponsor Licence through making a Home Office application for a Sponsor Licence. That means UK workers or those with Settled Status may be highly sought after thus increasing your recruitment costs and the likelihood that any existing EU workers may change job for better pay or conditions
• If your suppliers have recruitment issues because they are not Brexit ready, then they may not be able to meet contractual deadlines with the consequent impact on you and your business
• Ignoring post Brexit rules on the Employment of non-EEA nationals and EU citizens or operating without a Sponsor Licence isn’t a realistic option. The penalties for not complying with the UK illegal working legislation include criminal prosecution or Civil Penalty Notice and fines. That will not only mean financial consequences for your business but could also damage the reputation of your company.

Some business owners are concerned about taking legal or professional advice because they don’t want the law or regulations quoted at them. That’s understandable. Easy to understand options and the best Brexit solutions are required. UK Immigration solicitors can offer:

• Results driven and solution based legal advice
• Practical help, such as a same day Settled Status service for your existing EU staff so they can secure Settled Status or permanent residence
• Efficient Immigration solutions such as applying for a Sponsor Licence on your behalf so you can employ non-EEA nationals and, after the end of free movement, you can recruit EU citizens who are subject to Immigration control
• Expert solutions such as bespoke training for HR staff on Sponsor Licence reporting and recording duties or making your Sponsor Licence application and management as stress free as possible by providing a full Sponsor Licence management service
• Working with other professional advisors who can look at alternate options for you such as additional outsourcing of work and balancing the cost of outsourcing with the obtaining and management of a Sponsor Licence

3. Prepare your paperwork and your employees for Brexit
You may think that you can sit back and relax because the new planned Immigration system won't be introduced until January 2021 and your current EU employees still have time to apply for Settled Status or Pre-settled Status. However, unless you audit your personnel files you may not know how Brexit may impact on you and your employees and without checking and preparing your paperwork you can’t:

• Know how many employees are EU nationals
• Get ready to apply for a Sponsor Licence – successfully applying for a Home Office Sponsor Licence takes time as you will need to put new systems and procedures into place.
Whilst it may be tempting to apply for Settled Status on behalf of your EU employees, or to force them to do so, under UK Immigration and employment law you can't do that. All you can do is, in a non-discriminatory way, help your employees understand that they need to take the pro-active step of applying for Settled Status or permanent residence. Some employers are doing this by promoting advice clinics at their business premises or providing easy to understand Brexit information and access to Immigration solicitors to sort out their Settled Status during business hours.

You may be concerned that sorting out Settled Status during business hours could take most of the employee’s working day but a same day Settled Status application service often does not take more than thirty to sixty minutes of your employee’s time and is often quicker if your employee has all the correct paperwork with them.

As an employer, what you can't do is require an EU employee to tell you if they have already applied for Settled Status. You can however make it easy and as simple for your existing EU workforce to apply for Settled Status. That is in their interests as well as being in your interests. As a business owner if you provide:

• Correct and easy to understand Brexit information for your EU employees and
• Easy to access clinics to secure Settled Status
This may ease your EU employee’s worries over how Brexit will affect them and create employee loyalty. That employee loyalty may be worth a lot to your business when it is important to try to retain existing EU staff who have a right to work in the UK free of Immigration control through their applying for Settled Status. After the new Immigration system is brought into force employing new EU staff may involve a lot more red tape and paperwork, including the obtaining of a Sponsor Licence, so EU staff retention should be a key policy of any business getting itself Brexit ready.

What next?

At central London OTS Solicitors the Brexit team of specialist Settled Status solicitors and Immigration can help advise your business and employees on your best Brexit options and help you with our same day Settled Status service. Our business immigration solicitors can make sure your business is ‘Brexit proofed’ so you are ready to go. For information on how we can get your business ready for Brexit call the Brexit team hotline on 0203 959 9123 or use our contact form.