To state that Covid-19 has had a huge impact on UK businesses this year is somewhat of an understatement. It has been an unwelcome distraction that has had many business leaders and HR professionals up and down the country focussed on how to effectively run their businesses throughout the pandemic and ensure their long-term survival. For many, huge amounts of time and effort has been focussed on keeping workers safe, adapting to remote working, learning to navigate through and implement the Coronavirus job retention scheme (furlough), or in some worst case scenarios reluctantly making their colleagues redundant.
New immigration system
Brexit was the hot topic before we were plagued with the Coronavirus and some businesses may have therefore put this on hold or overlooked that the Brexit transition period will be concluding in the next few weeks. UK businesses small and large therefore need to consider, if they haven’t done so already, the people implications that lie ahead. The most significant development being that a new immigration system that will come into effect at 11pm on 31 December 2020, spelling the end of free movement of EU nationals. Thus requiring European workers to apply under the EU Settlement scheme before 30 June 2021 to continue living and working in the UK long-term.
This may present a challenge for some employers, however there is enough information available to enable business leaders or HR professionals to plan ahead. Employers, if they haven’t done so already, should be engaging with their European employees and devising a strategy for their current workforce, recruitment and talent retention.
What this may mean for your business
It is key that employers establish when their European workers first arrived in the UK, as there will be different immigration rules for European nationals based upon this. European nationals (and where applicable their family members) who first entered the UK before 11pm on 31 December 2020 (and in some cases, those who have previously spent time in the UK and are currently overseas) will need to apply under the EU Settlement Scheme in order to continue living and working in the UK long-term. A link to the gov.uk website is available below and the application is free.
It is worth noting that only certain individuals are exempt from having to make an application (e.g. those with indefinite leave to remain/enter, or Irish nationals). Individuals holding a permanent residence document must apply under the Scheme.
Failure to comply
Employers should be aware that failure to apply under the Scheme by the set deadline could mean that individuals will no longer have the right to live and work in the UK after 30 June 2021. Businesses are also likely to be committing a criminal offence if they continue to employ people and therefore it is critical that those responsible for HR practices take the lead on this or they could risk having members of their workforce being left without the right to work in the UK.
Settled Status or Pre-settled Status
Employees may fall into two categories: settled status or pre settled status. If an employee has been resident in the UK for a 5-year continuous period they should be eligible for settled status (i.e. permanent residency) under the Scheme. However, the individual must have been in the UK for at least 6 months in any 12-month period over the 5 years to have continuous residence. If they have spent more than 6 months out of the UK in any 12-month period then may break the continuity of the residence and therefore they may not be eligible for settled status.
When an employee has been resident in the UK for less than a 5-year continuous period, they should be granted pre-settled status. This is granted for 5 years and it seems that it cannot be extended. When an employee is granted pre-settled status, they need to protect their potential to apply for settled status by being present in the UK for at least 6 months in any 12-month period. Absences from the UK could mean that they are not able to apply for settled status after 5 years, consequently they will either need to leave the UK, or apply to stay in the UK under a different immigration category (e.g. sponsorship).
Employees who obtain pre-settled status need to be monitored by their employer, it is crucial that any time out of the UK such as overseas secondments or regular business travel does not break their continuity of residence and in turn prevent them from applying for settled status.
For those European nationals (and their family members) who enter the UK for the first time after 11pm on 31 December 2020, holding a European passport will no longer be an immigration advantage. Going forwards, they will be treated in the same way as non-EEA nationals and they will not be able to apply under the Scheme.
European national sponsorship
In the majority of cases employers will need to sponsor European nationals under the new Skilled Worker route and they will need a sponsor licence to do so. That said, it is only possible to sponsor individuals in medium-skilled or highly-skilled roles.
Employers should be conscious of the fact that sponsorship involves significant costs for them (the immigration fees can be £9,500 to sponsor one individual for 5 years); and it can be a time consuming process and there are specific compliance obligations employers have to adhere to