Whatever your feelings about Brexit – in – or out – an agreement has finally been reached. It’s been a long time coming and despite being somewhat overshadowed, it’s important that employers are aware of any potential implications.
The good news is, for now at least, there aren’t a huge number of changes in HR legislation. Parliament has adopted EU employment law and there isn’t a huge rush you make changes.
There are, however, two areas that it is important that we make you aware of. In essence, we have a new immigration system, as from 11pm on 31 December 2020, free movement for European nationals ended and this means implications for GDPR.
How does that affect employers?
Different immigration rules for European nationals are affected by when the person first came to the UK. European nationals and their families who first entered the UK before 31st December 2020,including some people who have previously spent time in the UK and are currently overseas, will need to apply under the EU Settlement scheme to continue living and working in the UK. It is an online process and is free, however there is deadline of 30 June 2021.
Only certain people are exempt from making an application –those with indefinite leave to remain/enter and Irish nationals. It’s important to remember that people holding a permanent residence document must still apply under the Scheme.
Failure to apply under the Scheme by the deadline will likely mean that the individual will no longer have the right to live and work in the UK after 30 June 2021. As an employer, you are also likely to be committing a criminal offence if you continue employing them. Therefore, it is critical that you take a proactive approach or risk key people being left without the right to work in the UK.
Individuals who have lived in the UK for a 5-year continuous period should be eligible for settled status (i.e. permanent residency) under the Scheme. Continuous residence means that they have been in the UK for at least 6 months in any 12-month period over the 5 years. If theyhave spent more than 6 months out of the UK in any 12-month period, this will usually break continuity of residence and mean that they are not eligible for settled status.
Pre-settled status. If the person has been resident in the UK for less than a 5-year continuous period, they should be granted pre-settled status. This is granted for 5 years and it can’t be extended. Therefore, they need to present in the UK for at least 6 months in any 12-month period, otherwise if they are not able to apply for settled status after 5 years, they will either need to leave the UK or apply to stay in the UK under a different immigration category.
Employers should monitor their employees who obtain pre-settled status, so that any overseas secondments or regular business travel does not accidentally break continuity of residence so they unable to apply for settled status.
For European nationals and families who first enter the UK from 1st January 2021, there will no longer be any advantage to holding a European passport. They will be treated in the same way as non-EEA nationals and will not be able to apply under the Scheme.
In most cases, employers will need to sponsor European nationals under the new Skilled Worker route and will need a sponsor licence to do so. However, it is only possible to sponsor individuals in medium-skilled or highly-skilled roles, therefore, organisations currently reliant on a low-skilled European workforce will not be able to sponsor people in the majority of these positions. Employers need to be aware that sponsorship involves significant costs for them, even where the skill threshold is met. The immigration fees can reach £9,500 to sponsor one person for five years and this can take a long time to process, often months from starting the visa process. On top of that there are onerous compliance obligations as well.
What should employers be doing now?
• Establish who in your organisation needs to make an application under the Scheme. If not, you should carry out an audit.
• Encourage members of your European team to apply under the EU Settlement scheme before 30 June 2021 – Stay in the UK (‘settled status’): step by step – GOV.UK (www.gov.uk)
• Consider how much support the business wants to provide to employees affected – e.g. training, support etc
• Diarise to undertake right to work checks on all employees in May/June 2021 and record any pre-settled expiry dates to diarise for further right to work checks.
• Be careful when offering regular business travel or secondments for employees holding pre-settled status.
• Consider applying for a sponsor licence now as this will be needed to sponsor European or non-European nationals from now on. Take advice on the sponsor obligations and HR processes that need to be in place first.
• Organisations that already hold a sponsor licence should ensure they are compliant with their sponsor obligations so they are prepared for any Home Office visit. Sponsors licences can be revoked for non-compliance. You may wish to consider an immigration audit;
• Review your current recruitment models – especially if you rely on low-skilled European workers. Remember the cost involved to sponsor European and non-European nationals.
• Review offer letters and employment contracts for all employees, which should state that employment is conditional on the person having the right to work and the employee providing satisfactory evidence of that right to work; and
• Consider European nationals who are resident overseas but who need to work in the UK on occasion. In some cases, they may qualify for the new Frontier Worker Permit.
Data Protection (GDPR)
• One piece of this huge document, clause 4, refers to data protection, If you can’t sleep you can read it here . It confirms that personal data can flow from the EEA into the UK for 4 months, but this could be extended to 6 months, whilst we await the EU decision on “adequacy”. This appears to mean that our GDPR is adequate enough to meet theirs. Ours is based on theirs so fingers crossed!
• We are pretty sure that provided you could demonstrate compliance (with respect to UK-EEA data transfers) at 31st December, you should still be able to in January 2021
We’re working as hard as we can to ensure that we are providing you, our most valued clients, the most relevant and up to date information. We will review this regularly and inform you of any amendments. If you have any further questions, please don’t hesitate to contact us on 0161 738 1808