The Changing UK Foreign Employment Landscape: Post-Brexit Transition

Foreign employment

Contact Rooney Nimmo UK Employment Partner – Dawn Robertson
+44 (0) 131 220 9579 – dawn.robertson@rooneynimmo.com

With the Brexit transition period coming to an end on 31 December 2020, there will be many changes that impact foreign workers in the UK.  This article looks at how the final end to the UK’s EU membership will affect the employment status of current working visa holders and the future employment of EEA nationals within your businesses.

As of 31 December, free movement around the territory will come to an end. EEA nationals (which includes EU countries and also Iceland, Liechtenstein and Norway, and non-EU or EEA member Switzerland) will need to apply under one of the following routes if they want to continue to work and live in the UK after the transition period ends:

The EU Settlement Scheme

Mandatory for all EU nationals who wish to continue living in the UK indefinitely after 31 December 2020, this requires EEA nationals to apply for settled or pre-settled status. The scheme is open now and the deadline for applying is 30 June 2021.

Temporary Leave to Remain
In the event of no deal, those EEA nationals who came to the UK after 29 March 2019 and were aiming to work for more than three months will need to apply under this route to be able to stay and work here temporarily. This route will be available until the new immigration system is in place in January 2021.

The new immigration system
The new system will apply to both EEA nationals and non-EEA nationals, irrespective of nationality. Essentially, it will require foreign workers to obtain a visa and require employers who wish to recruit skilled workers, to obtain a Licence to Sponsor. The new system is expected to be implemented on 1 January 2021, following a consultation period and changes to legislation.

Employers should assess how the scheme will affect current employees and ensure they apply for settled status now, bearing in mind that there are significant delays in processing applications due to COVID-19.

Those businesses relying on low-paid and low skilled workers from the EEA (e.g. the construction industry and low-paid work in social care, retail, horticulture, and hospitality) are likely to be affected.

The new system will inevitably result in significant curbs on the ability to recruit EU nationals who enter the UK.

Obtaining work visas
Being granted a visa to work in the UK will depend on when the individual comes to the UK and whether a deal is done.

With a deal:

The Government has confirmed that all EU citizens residing in the UK by 31 December 2020, will not require a work visa. Instead, they will be required to apply under the EU settlement Scheme for ‘settled status’ (the equivalent to Indefinite Leave to Remain) or ‘pre-settled status’, provided they meet the eligibility requirements. They will have until 30 June 2021 to make their application.

Without a deal:

All EU citizens must have been present in the UK by 29 March 2019 in order to be eligible to apply under the EU Settlement Scheme.

They will then only have until 31 December 2020 to make their application. For those arriving after 29 March 2019 wishing to work in the UK for more than 3 months, they will be required to apply for EU Temporary Leave to Remain until the new immigration system is introduced.

Essentially, the new immigration system will mean that all skilled migrant workers, irrespective of nationality, will need a UK sponsor and a visa to work in the UK.

Existing employees
Assuming a deal has been reached, the UK Government has confirmed that existing employees will be subject to the following:

  • EU nationals who have been residing in the UK continuously for five years by 31 December 2020 will have the right to apply for settled status and, where granted, will be free to work or study in the UK permanently. Those with settled status and six years of continuous residency will then be eligible to apply for British citizenship.
  • EU nationals who arrive in the UK by 31 December 2020 but who have not been living here continuously for five years, will have the right to apply for pre-settled status to remain in the UK until they can accumulate the required continuous residency to qualify them to apply for settled status.
  • Continuous residency typically requires that the applicant has not been outside the UK for more than six months in total in any 12-month period.

Additionally, applicants will also need to meet the following criteria to apply for the Settlement Scheme:

  • Proving identity– through a passport, identity card, BRP, etc;
  • Proving residency in the UK for the required period
  • Criminality– checks will be undertaken for any serious or persistent criminals or anyone who poses a security threat.

There are a lot of moving parts on these issues and we appreciate they can be difficult to navigate.  If you need help or have any questions, please contact Dawn Robertson by email – dawn.robertson@rooneynimmo.co.uk or phone at +44 (0)131 220 9579.

 

This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.

 

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