14/01/2019

Employers in the UK are facing serious challenges in recruiting the skilled people they need. With job vacancies now at a record high, there are concerns that – BREXIT deal or ‘no deal’ - a more restrictive immigration regime will lead to hiring and retention difficulties staying at critical levels for some time.

For employers, the regulatory environment is both uncertain and complex.

From 2020, the same immigration rules will apply to individuals whether they are from the European Economic Area (‘EEA’) or the rest of the world. New overseas staff will need to meet new ‘required qualifications’ skills levels. The cap on skilled workers and a requirement for employers to carry out a resident labour market test will end.

The government is also proposing to introduce a "time-limited" transition route for temporary short-term workers at any skill level from certain "low risk" countries, in order to ease pressure on employers of lower skilled workers following the end of free movement from the EU.

The Home Office recognises that the adjustments will be difficult, particularly for the social care sector, but concerns are unlikely to be alleviated with the relatively unattractive Temporary Short Term work route under which individuals cannot stay for more than 12 months, access benefits, bring dependants, nor settle in the UK, extend or switch routes. There is also a cooling-off period that applies for a further 12 months to prevent people effectively working in the UK permanently.

The government would also retain the right to close the scheme "if economic conditions in the UK warrant that", and will fully review it in 2025.

Employers with a workforce relying on low skills and EU/EEA workers will need to carefully review the new intermediate sponsored route for RQF Level 3 – 5 for permanent employment where appropriate, and the shortage occupation codes, which the government has asked MAC to review (likely Spring 2019) – involving jobs where there are not enough resident workers to fill vacancies.

EU citizens can apply for 'settled' or 'pre-settled' status:

  • Settled status - EU citizens and their family members who have been continuously resident in the UK for five years, by 31 December 31 2020, will be eligible for settled status, enabling them to stay in the UK indefinitely
  • Pre-settled status - EU citizens and their family members who arrive in the UK by December 31 2020, but will not yet have been continuously resident here for five years as at that date, will be eligible for pre-settled status, enabling them to stay until they have reached the five-year threshold. They can then apply for settled status

From 21 January 2019, the Home Office is extending its voluntary pilot scheme to all EU citizens who hold a valid passport and any non-EU citizen family members who hold a valid biometric residence card. Prior to this, the pilot has been open to employees of selected universities and health and social care bodies only.

Whilst feedback has been positive overall, there has been technical glitches reported. Organisations may need to consider solutions for this or wait for these issues to be resolved with the Home Office’s ‘easy-to-use system’ officially launching on 30 March 2019.

If there is a BREXIT deal, free movement for EU nationals will continue during the implementation period, meaning organisations will be able to employ EU nationals without any restrictions until December 2020.

In a ‘no deal’ scenario, EU/EEA nationals already in the UK by March 29 2019 can remain, but it is unclear if free movement will continue for EU nationals arriving post-BREXIT until, for example, the new immigration system is rolled out or a sensible transition period is set by the government.

After 2021, the Home Office will not require employers to undertake retrospective right to work checks on existing EU employees, and from the end of January 2019, employers will be able to request online right to work checks. Helpfully, the government has confirmed that employers will not need to make additional right to work checks to differentiate between recent arrivals in the UK and settled residents if there is ‘no deal’.

It’s a critical time for organisations that rely on overseas staff to keep their businesses running and provide the required levels of skills they need from both workers from EEA and non-EU countries.

For employers, the increasing burden of legal compliance can be bewildering.

Ultimately, with public policy around migration and employment still fluid, organisations will also need to remain agile, engage in scenario planning and keep closely aware of new opportunities that arise as the new post BREXIT employment landscape takes shape.

If your organisation is needing advice, or support around legal compliance, please speak to Bevan Brittan’s Business Immigration Law specialists, who are available on immigration.law@bevanbrittan.com.

To assist organisations, Bevan Brittan has brought together its extensive services advising on immigration and BREXIT-related issues to create a new hub through which clients can access support and advice.