Since the UK voted to leave the EU we have increasingly been asked to advise on what the immigration system may look like in the future. As immigration law changes so rapidly, this is something we are accustomed to. I have given evidence to Parliament on potential immigration law changes and, in addition, sit on the Law Society of Scotland's immigration and asylum law sub-committee.
How the current rules compare
One aspect which has come through in our meetings with employers over the last year is how flexible the rules relating to the recruitment of EEA nationals are, when compared to the Immigration Rules which apply to non EEA nationals. For example, at the present time, recruiting an EEA national is as simple as carrying out a right to work check by seeing their passport or national ID card; there is no requirement to pay a minimum salary (other than National Minimum Wage); there is no approval process and no minimum skills level. As a contrast, should a UK employer wish to recruit an American national they would need to obtain a Sponsor Licence, complete the Home Office required Resident Labour Market Test by advertising the role, demonstrate no suitable candidates had applied, obtain a Certificate of Sponsorship from the Home Office, pay an Immigration Skills Charge and then pay a minimum salary. The obligations don’t end there as the employer then has to monitor and report on their employee throughout the duration of their employment. Recruitment under the Immigration Rules is a lengthy, complex and expensive process filled with technicalities and pitfalls, so it is unsurprising that many employers are worried that this could be applied to EEA nationals in the future.
What has the Home Office suggested and what are the consequences?
A common question I've heard in the last 12 months is "What does it all mean?" and our clients can be forgiven for asking this as it seems like the position on Brexit moves from week to week. However, the UK Government proposals for EU nationals already working in the UK give some indication of what may lie ahead:
- When the UK leaves the EU, those who have been here for more than 5 years will qualify for settled status; and
- There will be a cut off date, falling sometime between 29 March 2017 and 29 March 2019. EEA nationals arriving before this date will be able to remain in the UK until they become eligible for settled status. Those arriving after the date will need to qualify for some other form of leave to remain.
Whilst the exact cut off date is still to be determined the proposals mean that once the UK leaves the EU, existing EEA members of staff will be divided into 3 categories:
Staff with more than 5 years residence in the UK who are immediately eligible for settled status;
Staff who have not completed 5 years residence but will be able to remain in the UK until they do; and
Staff who arrived after the cut off date and need some other form of leave to remain. There are some leaked proposals suggesting "leave to remain" for EEA nationals will involve short term work permits based on skill levels but these are not yet official.
What strategies are there for dealing with existing staff?
With the uncertainty around Brexit many employers have adopted a wait and see approach, but in my opinion this is a dangerous tactic. A Chamber of Commerce study last year found that 41% of businesses had staff with concerns about their residence, and 5% of businesses had experienced resignations due to Brexit. Adopting a wait and see approach increases the chance of losing key staff, and I have clients who have found this out the hard way. My recommendation is that employers take steps now to do all possible to retain their staff. The first stage of this is simply to review their internal records to identify which category an employee may fall into. This can be done using their length of service and any papers retained from their initial job application. This will mean that, when the cut off date and more concrete proposals are announced, the employer will be ready to act. Just as doing something is important, it is equally important that an employer is seen to be doing something. It is all well and good to carry out steps behind the scenes but if your employees aren't aware of your plans this could be perceived as ambivalence and will only lead to greater uncertainty and increase the risk of resignations. I have seen a number of approaches to the issue but the most popular are:
- Reassurance - This involves an employer communicating to all members of staff about the value of EEA national employees and their understanding of the current position. It can be done via meetings or email and allows the employer to explain the steps they are taking and that they want to keep existing employees.
- Signposting - This is a step beyond reassurance but involves an employer helping their employees understand their rights. I have been asked to meet with some of my clients' employees and answer their questions about Brexit and I have seen employers provide a list of local specialists that their employees can seek advice from, and in some cases the employer has negotiated preferential rates for this service. These measures have been very well received by employees and are becoming increasingly popular.
- Support - Some employers go further and offer support to employees considering making applications to the Home Office. This can be by providing interest free loans to cover the cost of advice, time off work to see a specialist or even meeting the cost of the advice. This is more common among senior or specialist staff within an organisation.
Other measures employers should consider
Unfortunately since the Brexit vote, there have been a number of reports of racially aggravated incidents involving EEA nationals. While any employer would hope to avoid incidents in the workplace, with Brexit being such a hot topic it is easy to envisage a situation where a political discussion could offend an employee. Employers should use any communications with staff to remind them of any dignity at work policies and the need for professional behaviour in the workplace. Employers may also need to consider diversity training and providing opportunities for any member of staff to raise concerns.
At the moment there is no clear indication of what recruiting from the EU will look like after Brexit, although the Prime Minister has indicated that there will be a transition period before any major changes come into force. There have been leaked proposals, regarding immigration after the transition period, but nothing concrete is expected until later this year or early in 2018. Against this backdrop some of my clients are finding it difficult to hire EEA nationals and persuade them to move to the UK. This uncertainty does not need to delay recruitment but employers do need to take it into account when making an offer. I have seen employers include a contractual right to legal advice about immigration status after Brexit, or even arranging for legal advice for the preferred candidate before they accept the offer. Another measure which has been successful is providing the candidate with some assurances based on the Tier 2 visa system for non EEA nationals; if a candidate is made aware that they will qualify for leave under the Immigration Rules and the employer is willing to support them then they are likely to be assured of their long term status in the UK.
There is no denying that Brexit has presented challenges for the recruitment and retention of staff across all sectors in the UK. However, in my experience the employers that are willing to face those changes head on are more likely to benefit in the short term and be better prepared for whatever the future may bring.