Legal

What the EU settlement scheme means for your company

29 Apr 2019 By Kerry Garcia and Jackie Penlington

What practical steps can employers take to safeguard employees affected by Brexit and ensure they don’t lose key staff or risk breaking the law? Kerry Garcia and Jackie Penlington report

Regardless of whether the UK leaves the EU with or without a deal, all EEA nationals (other than Irish and those with dual British nationality) must act to secure their long- term right to stay in the country.

If the deal is agreed, free movement for EEA nationals continues until 31 December 2020. Any EEA national residing in the UK by then may stay long term provided they apply for settled or pre-settled status under the EU settlement scheme by 30 June 2021.

Anyone residing in the UK for less than five continuous years must first apply for pre-settled status. After residing in the UK for the five-year period, they must apply for settled status.

If the UK leaves the EU without a deal, EEA nationals residing in the UK on the date the country leaves (the Brexit date) can remain but must apply for settled or pre-settled status by 31 December 2020. 

In the event of a no-deal, any EEA national coming to live in the UK after Brexit date but before 1 January 2021 would not need a visa but may only remain for three months. To remain longer, they must apply for temporary European leave, which is valid for three years. They would either need to leave the UK after three years or apply under the immigration rules at the time.  

The future immigration landscape

The most significant changes for employers will come into effect from 1 January 2021, when EEA nationals will no longer have preferential access to the labour market. 

Deal or no deal, from that date, any EEA nationals arriving to live in the UK will be treated in the same way as other overseas nationals – if they arrive in the UK for the first time after 31 December 2020, they will need to qualify under the new immigration rules. 

Many EEA nationals simply won’t qualify – especially if they are in low-skilled jobs or earn less than a specified amount, likely to be around £30,000 per year.

At this stage, certain sectors, like hospitality, retail, social care and construction, will really start to feel the impact of Brexit.

The EU settlement scheme relies on more than three million people registering themselves by the relevant deadline. No doubt some will simply not do this. Others may struggle to obtain pre-settled or settled status – especially those who do not have records with HM Revenue & Customs or the Department for Work and Pensions.

Those failing to register by the relevant deadline are likely to be in the UK unlawfully after that deadline, even if they have lived and worked there lawfully for many years.

This launches them into a hostile immigration environment: unable to prove their right to work in the UK, hold a driving licence or bank account or access free healthcare.  

Businesses should consider taking action, including: 

  • Keep an eye out for updated guidance on immigration issues as the deadlines mentioned above may change following the recent delay to Brexit.
  • Actively raise awareness in the workforce about the need to apply under the EU settlement scheme by the deadline – review the Employer EU settlement scheme toolkit online.
  • Determine what level of support you want to provide. Many employers are offering practical support and resources to their employees (for example, immigration workshops or briefing notes).
  • Undertake full right to work checks on all employees shortly before the relevant deadline, to ensure they will still have the right to work in the UK.

Kerry Garcia is a partner and Jackie Penlington a senior associate at Stevens & Bolton LLP 

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