Border control

After 18 months of uncertainty and only two more to go until the UK formally leaves the European Union (EU), the status of UK-based EU workers has been put into sharp focus.

Britain’s economy is heavily reliant on the approximately 2.5 million EU nationals currently working in the country, and the legal industry is no exception: an estimated 10-20 per cent of trainee intake in corporate firms in London comes from the EU. What steps can law firms take now to reduce the impact of Brexit to their business, and support their workforce?

Identify affected employees and reassure them

Assess the composition of the workforce and identify any affected staff – either EU citizens or family members of EU citizens.

10-20 per cent of trainee intake in corporate firms in London comes from the EU

The position of EU nationals and their family members will not immediately change after Brexit. Under the terms of the withdrawal agreement, EU nationals and their family members will continue to enjoy the right of free movement, including being able to work, study and reside in the UK with few restrictions, until at least the end of the transition period, which is due to expire on 31 December 2020.

EU nationals and their family members wishing to remain in the UK after 31 December 2020 will be required to apply for either ‘pre-settled’ or ‘settled’ status under the new EU Settlement Scheme (EUSS), expected to be ‘fully operational’ from 29 March 2019.

Therefore, provided that the withdrawal agreement is executed as planned, any EU national employees residing in the UK before 31 December 2020 should have the right to settle in the UK.

Keep informed

The single biggest concern surrounding Brexit has been uncertainty, so keeping up to date with changes and communicating these should be a priority.

The government has published information, including an employer toolkit, to provide employers with the right tools and information to support EU citizens and their families on the impacts of Brexit. Businesses and employers can also sign up to the government’s email updates on Brexit. For advice on complex cases, an immigration law specialist should be consulted.

Understand the options

Under the EUSS, EU citizens who have continuously resided in the UK for at least five years will be granted settled status. Those with less than five years’ residence should be granted pre-settled status, to allow them to complete five years’ residence and become eligible for settled status.

In a welcome change, ‘continuous residence’ is defined as ‘presence’ in the UK, as opposed to requiring individuals to provide evidence of work (employment or self-employment), study or self-sufficiency.

Employers should consider bringing forward any recruitment campaigns to before 29 March 2019

In its recently-published white paper on immigration, the government announced that EU nationals coming into the UK after 1 January 2021 will be treated in the same way as non-EU migrants. This would require employers to meet certain requirements currently only associated with sponsoring non-EU workers, including paying a minimum salary level of £30,000 (this is likely to be subject to formal review and may be lowered) and other ancillary costs such as immigration skills charge and Home Office filing fees.

In a welcome change, some of the most problematic features of the current Tier 2 system, including the Tier 2 (General) annual cap and the resident labour market test are set to be removed. Minimum skill levels are also set to be lowered from Regulated Qualifications Framework (RQF) level 6 to RQF 3 and above – but this is unlikely to have a great impact unless the minimum salary level of £30,000 is greatly reduced.

Finally, a time-limited transitional measure will be introduced allowing for short-term and low-skilled workers from certain ‘low-risk’ nationalities, including EU nationals, to come and work in the UK for up to 12 months.

Encourage employees to apply for documentation

All EU nationals currently residing in the UK will be required to make an application for immigration permission under the EUSS by 30 June 2021. To avoid the anticipated avalanche of applications at the end of the transition period, it is advisable for EU nationals and their family members to make an application as soon as they are able to. The EUSS is expected to be fully rolled out by 29 March 2019.

Prepare for a no-deal Brexit

While the government has announced that it will respect the rights of EU nationals in the UK even in the event of a no-deal Brexit, it is currently unclear whether EU nationals coming into the UK after 29 March 2019 would be allowed the same rights. Therefore, employers should consider bringing forward any recruitment campaigns to before 29 March 2019 to avoid recruitment issues.