News Update

EU employees’ right to work in the UK

The UK left the EU on 31 January 2020, the EU’s Free Movement of Workers will continue during the transitional period set to end on 31 December 2020. This transitional period is largely a standstill agreement to give businesses time to plan. So practically, not much has changed on “Brexit Day 2020” the significant changes will be at the end of the transitional period.

2020 – The year to plan!

The transition period was initially set to last 21 months, however as Brexit did not occur on 29 March 2019 or 31 October 2019, we are left with 11 months to plan for the real cliff edge set for 31 December 2020. This is when the reality of Brexit will hit employers. From an immigration perspective there will be two major changes:

Firstly, free movement of EU workers to the UK will end. Secondly, a new UK Immigration System will come into place. We will look at these two issues below.

End of EU Free Movement

Whatever your political opinion, the end of free movement of workers will be a huge obstacle for employers wishing to recruit and retain EU national employees. Free movement meant that employers could simply satisfy their right to work checks by viewing a potential employees EU passport and keeping a copy on file, it was that simple.

With the end of free movement, employers should be aware that your current EU workforce in the UK will need to make an application to register their status. This registration will be under UK law and is not an automatic process. An EU national’s ability to live and work in the UK will not be protected unless they make this application.

The Scheme has two application types:

  • Pre-settled Status – This will provide limited leave to remain until an individual has reached the 5-year mark required for settlement. It is a form of temporary residence permit that will allow EU nationals to continue to live and work in the UK.
  • Settled Status – This will provide indefinite leave to remain (ILR) if the EU national can demonstrate continuous residence in the UK for five years. This was previously known as Permanent Residence (PR) under EU law.

Successful candidates will be granted evidence of their status “in digital form”. No physical documents will be issued. Employers must therefore validate an employee’s right to work via an online portal. Non-EU family members will continue to be issued with plastic credit card sized, Biometric Residence Permit (BRP) cards. The right to work process for these individuals will be similar to non-EU, and employers must view and take a copy of the BRP card.

New Immigration System

A new immigration system is currently being developed, and it is important that you keep up to date with the Government’s plans. So far, the government has decided that EU nationals will not be given any preferential treatment. Essentially, under the new system, EU nationals will need to apply for a visa (work permit) before commencing employment in the UK. The time and cost involved will need to be factored into your recruitment process. The government is focusing on the following criteria; salary levels (proposed £25,600 – £30,000 minimum), English proficiency, qualifications, occupation type and possibly geographical location.

Time will tell if the government can draft and implement a new immigration system in 11 months! However, if this is not possible by January 2021, then EU nationals will still need to submit some form of residence application. The government has suggested this would be called European Temporary Leave to Remain (Euro TLR). The idea being that this will bring EU nationals to a point where they can apply under the new immigration system when it is ready. The Government has indicated they will try and avoid bringing Euro TLR into existence, so they may need to rush through the new immigration system. This could mean that the new system would be similar to our current Tier 2 visa system with a bolted on “Australian Style” points-based system.

We are already starting to see an increase in business clients seeking a Tier 2 Sponsor Licence currently needed to sponsor non-EU workers, in preparation for potentially needing one for new EU hires. If you are interested in applying for a Sponsor Licence, please contact Stephen Hall.

What is the “Australian Style” points-based system? – It was used as a handy soundbite in the Brexit debate, to define a “better way” to control UK immigration. The Australian system is based on a range of criteria, including; age, job offer, English language, time in skilled employment, qualifications, and the skills of the applicant’s partner. Other points can be awarded for a ‘professional year’ in Australia and sponsorship by local government. The Australian system is by no means the perfect template, and like any immigration system it also has its own drawbacks. The main one being that if you increase the number of criteria, you increase the processing timeframes. According to the Australian government, the visa process is normally completed within 20 months. This timeframe would be unacceptable for the UK, which on average has a 1-3 months timeframe.

Hopefully, replication of the Australian system should be less important than the UK simply creating a system that works. The government is set to release another White Paper on this topic in March 2020, so look out for our updates.

With fewer alternative scenarios now on the horizon. We recommend a 5-step approach so that your business can plan for these changes.


Key Contact

Stephen Hall
Senior Associate, Head of Immigration
+44 20 7539 7310
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