Legal

What do employers need to know now the Brexit transition period has ended?

16 Jul 2021 By Anne Morris and Paida Dube

From this month, businesses that employ EU nationals will have to follow a new set of guidelines when checking their right to work status, explain Anne Morris and Paida Dube

The Brexit Withdrawal Agreement provided a grace period for qualifying EU citizens and their families in the UK to register under the settlement scheme and safeguard their lawful residence in the UK from 1 July 2021. 

Those who did not apply for pre-settled status or settled status by the end of the transition period on 30 June 2021 no longer have a legal basis for living, or working, in the UK. 

To avoid discrimination issues, employers should refrain from checking if their EU workers have made an application, although it is recommended to remind them of the deadline to prevent issues with their Right to Work status. 

Changes to right to work acceptable documents

To coincide with the EU settled status transition period ending, the list of acceptable documents that an EU national must present to a new employer to prove their right to work is also changing. 

Since 1 July, EU citizens can no longer rely on their passport, national ID card, document certifying permanent residence or their Registration Certificate to evidence their right to work when starting a new role.

Instead, the requirement is that EEA and Swiss workers employed from 1 July 2021 must show they hold valid pre-settled status, settled status or a valid visa, or by making use of the Home Office’s online checking service.

All Right to Work document checks since 1 July must comply with the new rules on acceptable documents for EU workers, or the employer risks Home Office enforcement action such as a civil penalty. The rules apply to EU national workers employed from that date and it will not be necessary to carry out retrospective document checks on existing employees.

Frontier worker permit deadline 

Cross border workers had until 30 June 2021 to apply for an EU frontier worker permit to retain their permission to travel to the UK to undertake qualifying 'frontier' work. 

Without a frontier permit, cross-border workers who are based in an EU member state but work in the UK need to carefully plan their travel to the UK and determine which immigration option, such as a work visa, best suits their needs. 

Updating employment documentation 

In light of the changes, employers are advised to review and amend their employment contracts and policies to reflect the new status of EU nationals in the UK. This includes recruitment guides, offer letters, employment contracts, internal right to work policies, staff handbooks, assignment letters and international assignment and mobility policies.

For example, employers should update their internal right to work policies and guidance with the new acceptable documents for EU workers and ensure all those involved in the organisation's recruitment and onboarding are trained and are aware that EEA nationals now require immigration permission. Records should also be kept confirming this training took place.

Overseas recruitment and mobility documentation should also be reviewed to take account of the changes in EU worker rights, status and immigration routes, and what this means for the company’s processes and budgets when recruiting from overseas. 

Hiring EU workers now

Following the end of free movement, EU nationals coming to the UK must now have permission to work here. Work visas include the Skilled Worker visa for individuals sponsored by a licensed UK employer, the Intra Company Transfer visa for workers employed by an overseas organisation transferring temporarily to a UK branch, and the Global Talent route for individuals who can show exceptional talent or promise within their field. 

Applications for the new graduate post-study work visa opened on 1 July 2021. The route allows employers to hire international graduates, who have studied and attained a degree in the UK, for up to two years (or three years if they have a PhD) without having to sponsor them. 

EU nationals are allowed to come to the UK as visitors without applying for a visa, provided they meet the requirements under the visitor rules. This includes staying for no more than six months and not partaking in prohibited activity. For example, it is permissible to come to the UK as a visitor to attend a job interview or business meeting, but not to stay and carry out paid employment.

If you have executives or employees intending to travel to the UK as visitors, it is advisable to check before travel that they do qualify as genuine visitors, and that they travel with documentation which can be presented to border officials as evidence of their reason for travel. 

HR GDPR and transferring data outside the UK

GDPR may be a further concern if your organisation receives personal data from the EEA. The EU GDPR was incorporated into UK data protection law as the UK GDPR at the end of the transition period, sitting alongside the Data Protection Act 2018 (DPA 2018) and effectively preserving EU data standards in the UK. 

Data transfer restrictions were delayed by the EU until 30 June 2021 to allow personal data to flow freely from the EEA to the UK until the end of this bridge period or when an adequacy decision was adopted by the EU. 

The draft EU GDPR adequacy decision from earlier this year states the UK provides adequate protection for personal data transferred from the EU under the EU GDPR. However, without a final, confirmed position from the EU on UK adequacy, employers that have failed to follow ICO guidance on how to prepare for 1 July 2021 may face compliance risks.

Preparation should include reviewing privacy notices, putting alternative safeguards in place, such as using standard contractual clauses for transfers into the UK and making use of the ICO’s interactive tool for international transfers. 

Anne Morris and Paida Dube are lawyers at DavidsonMorris

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