Brexit – yes, we do need to get ready!
Brexit: the challenges continue to come thick and fast for employers this year but, whilst we might be glad to see the back of 2020, what do we have to look forward to in 2021? The EU transition period ends on 31 December 2020, bringing with it the prospect of the UK’s new immigration rules and the steps your organisation needs to take to protect its workforce. If you haven’t yet started thinking about that, there is still time to prepare your business. The Home Office guidance about the new immigration rules is still incomplete and unfortunately significant uncertainties remain about how the system will work. Although we cannot be certain how to proceed, the end of the year is obviously fast approaching and the suggestions below will help you get started. What should you do now?
- Do a staff audit: establish who relies on EEA Free Movement rights. Don’t forget non EEA family members.
- Reach out to affected staff members, and encourage them to apply for immigration status which allows them to live and work in the UK – don’t assume they already know what to do to protect themselves.
- Staff who mainly reside in the UK can apply under the EU Settlement Scheme (EUSS) now: https://www.gov.uk/settled-status-eu-citizens-families
- Staff who periodically visit the UK for work may be able to apply under the EU Frontier Workers permit -the scheme opens on 1 January 2021.
- Include a note in the December payroll run, acknowledging that the employee is working in the UK and noting their UK address (if this is relevant). This creates a date stamp showing you have considered staff members’ immigration status prior to the 1 January 2021 changes. It will also assist if future termination proceedings become necessary.
- Actively monitor any affected employee’s progress to gain new immigration status. Check in with them on a monthly basis, stressing the need to take action well before the 30 June 2021 cut-off date.
- Take full evidence of their immigration status, as often this is only available on the Home Office’s electronic portal.
- What counts as evidence? Proof of settled/pre-settled status under EUSS, indefinite leave to remain (ILR) or other type of permission granted under UK immigration rules.
- What doesn’t count as evidence? Permanent residence cards, residence cards, registration certificates or family permits issued to recognise EEA Free Movement rights.
- Consider timeframes involved in any possible dismissals – you may need to schedule warnings or other formal steps in order to dismiss staff who haven’t applied for UK immigration status by 30 June 2021.
- The position regarding EEA/Swiss nationals who have outstanding applications or are challenging refused applications as of 1 July 2021 is yet to be clarified.
- Carry out right to work checks:
- Before 30 June 2021 – check passports and national ID cards for EEA/Swiss nationals in line with List A requirements: https://www.gov.uk/government/publications/right-to-work-checklist
- From 1 July 2021 – employers will need to undertake checks to confirm whether EEA/Swiss nationals have been granted status under the EUSS/Frontier Workers permit scheme, or obtained alternative immigration status under the UK immigration rules. After that date, a passport or national ID card alone will not be sufficient to satisfy requirements.
- The Home Office has promised that it will update the right to work guidance, in line with the changed status of EEA/Swiss nationals, so keep a close watch for further Home Office right to work announcements.