Your Brexit New Year Resolutions

9 March 2020

Now that the UK has officially left the European Union, what are your (slightly belated) Brexit New Year Resolutions? 

Here are our five key steps to Brexit-proof your business:

 1. Don’t panic!

There were no immediate changes to the visa status of EU nationals on 1 February 2020, and no immediate changes to the right to work documents which employers need to see to prove that individuals can be employed/engaged.

In effect, it’s business as usual until the end of the transition period on 31 December 2020, but that’s not to say businesses shouldn’t use the next 11 months carefully to make sure they are prepared when the changes do take effect on 1 January 2021.

 2. Review the profile of your current workforce and audit your employee records

It’s worth investing some time now to review the nationality profile of your current employees, staff and contractors to work out who is likely to be affected by Brexit and the end of free movement on 31 December 2020. 

To do this, you should audit your records to determine which members of staff are EU nationals, or otherwise require visas to stay/remain in the UK.   This will enable you to identify key individuals who are likely to be affected and/or areas of your business where Brexit will have the most impact.

Employers should also audit their current compliance and right to work arrangements to make sure their house is in order in preparation for the new immigration compliance regime.

 3. Support current employees, workers and candidates who are affected by Brexit

Most EU nationals who are currently living in the UK, or who arrive before the end of the transition period (currently 31 December 2020), and who want to stay living and working in the UK after this date will need to obtain Settled (or Pre-Settled) Status to do so.  This involves making an application under the EU Settlement Scheme and satisfying various eligibility criteria. Under the current arrangements, applications will need to be made before 30 June 2021.

EU nationals who fail to obtain Settled Status before the 30 June 2021 deadline will no longer have a legal right to live and work in the UK and run the very real risk that they will be overstayers and might even face deportation.

They would also be working illegally, which exposes employers to a potential civil penalty of £20,000 fine per illegal worker, along with being “named and shamed” or even potential criminal liability (which could result in an unlimited fine and 5 years imprisonment).

Whilst the onus is on individuals to ensure they have the correct visa status to live and work in the UK, there are clear commercial benefits to businesses from supporting their employees, workers and candidates in this process.

Firstly, it avoids the risk that existing staff might not be able to carry on with their roles, and secondly, it minimizes any costs and risks involved with potential staff shortages, recruiting replacement staff and dealing with illegal workers.

This support could take many forms: it might be assisting staff with information by communicating clearly with them, tackling employee engagement in workforces where there is apathy towards Brexit, upskilling HR and managers so they understand the issues or helping individuals with the practical logistics such as allowing access to a scanner or paid time off to complete the relevant applications.

It’s important to bear in mind however that employers are generally prohibited from giving immigration advice as it is a regulated activity. If employers start to give immigration advice (even if they are doing so with the best of intentions) this could result in a fine or up to 2 years imprisonment. 

 4. Review your people strategy – both long and short term

With effect from 1 January 2021, EU nationals coming to the UK for the first time, will be required to obtain a visa to live and work in the UK, in the same way as non-EU nationals.

Details of the new scheme were announced on 19 February 2020 and involve migrants coming to the UK scoring points in a number of categories, including the skill level for their role, their English language capability and their salary levels.

Businesses will need to review their people strategy against these new rules to see whether their recruitment needs will be addressed by the new immigration regime.  So far bodies as disparate as the CBI, the Royal College of Nursing, the Food and Drink Federation, the National Farmers’ Union and Unison have all expressed concerns about staff shortages when the changes take effect.

As a result, businesses may need to rethink how they recruit talent and fill their staffing vacancies. This might mean focusing on more local recruitment, including links with schools, apprenticeship schemes, and local job centres.

 5. Obtain a sponsor licence

The new visa regime depends on businesses holding a sponsor licence (as per the current sponsored work route).  As such, the Government’s press release on the new immigration system strongly encourages any businesses who might want to recruit non-UK after the end of this year under the new scheme to apply for a sponsor licence now.

This is something which we would also strongly encourage businesses to do to so that they are well positioned to make a smooth transition to the new system next year,

We can help you with all aspects of your strategic planning and navigating the new rules, and wee regularly assist businesses with obtaining sponsorship status.

This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

This article is reproduced the kind permission and thanks to Brabners Law Firm.

If you would like to discuss any of these issues in more detail, please contact the Head of Brabners’ Business Immigration Team, Laura Darnley, Senior Associate as follows:

Laura Darnley - Senior Associate
Tel:    0161 836 8880