Employers urged to shift to emergency workforce planning mode following Home Secretary’s latest Brexit announcement to end EU Free Movement abruptly
A no deal Brexit looks more likely than ever.
While the leaked Yellowhammer report has given insight into central government’s extensive crisis preparations, this level of emergency planning is demonstrably not being matched by employers across the UK economy.
In immigration terms, the Home Secretary’s comments yesterday have added an acute sense of urgency to the need for employers to prepare for the impact on workforce planning of the UK crashing out of Europe without a deal.
EU freedom of movement to end on 31stOctober 2019
EU free movement would have continued during the transition period until 31 December 2020 under the agreement negotiated by Theresa May but the new Home Secretary, Priti Patel has stated in that in a ‘no deal’ Brexit free movement would come to an end on 31stOctober 2019.
It is difficult to see how she proposes to achieve this – the Immigration and Social Security Coordination (EU Withdrawal) Bill, which would end free movement, has passed Committee stage in the House of Commons but has not yet gone to Report stage.
Given the limited parliamentary time left before 31 October (with Parliament in recess until 4 September, and the conference season recess beginning on 13 September), it appears unlikely that the Bill will pass the Commons and Lords and receive Royal Assent within this timeframe.
Deal or no deal, the government is continuing with its reform of the UK immigration system to take effect by January 2021.
The new system is to be based on skills over nationality, which will profoundly affect recruitment, onboarding and immigration compliance strategies and practices in both the short and long term. This will necessarily impact EU citizens’ rights and ability to come to the UK to work and consequently UK employers’ recruitment strategies and budgets when hiring EU workers post-Brexit.
Deal or no deal: impact on recruitment & retention
The end of EU free movement will abolish the rights of EU citizens to come to the UK to work in any capacity without first having to apply for Home Office permission. In an economy reliant on non-UK national workers, limiting access to this workforce will hit employers across sectors.
Looking specifically at EU immigration, the Government published its no deal arrangements in January. But the latest communications from the Home Office provide no further information relating to these plans, meaning we could expect a greenfield scenario and a completely new approach – entirely plausible given the current turbulent and unpredictable state of politics.
Under the plans published in January, after the UK leaves the EU, EU citizens not already in the UK will be allowed to enter the country, but they would only be able to stay for a maximum of 3 months.
To remain in the UK lawfully beyond this 3 month period, they would have to apply for a new ‘European Temporary Leave to Remain’ status, which will allow the individual to work, live and study here for up to 3 years. At the end of this period, the individual would either have to leave the UK or apply to remain under a different visa route. The proposals say it would not be possible to extend this leave, nor will it count towards EU settled status, permanent residence or indefinite leave to remain.
For EU workers in the UK and their employers – the concerns are palpable.
With no clear plans for a regime post 31stOctober (or post the UK”s exit from the EU), how can employers realistically and effectively plan and manage their workforce?
What should employers be doing now?
The changes will impact both EU citizens already in the UK and those looking to come here after Britain leaves the EU.
Those already in the UK on ‘Brexit Day’ are already required to register under the EU settlement scheme to remain in Britain lawfully after the country leaves the EU.
Employers are encouraged to take action to ensure their EU employees are aware of this requirement. Even where otherwise eligible to remain lawfully in the UK, EU citizens who do not apply for this new status will become illegal residents.
Supporting your employees through the process can help to minimise EU staff attrition. Measures could include offering settled status presentations and sharing guidance materials.
Looking at the bigger picture, recruitment strategies, budgets, timescales and policies should be reviewed in light of the increasingly likely prospect of a no deal exit, with the risk of immediate restrictions on EU worker access and the longer-term immigration system overhaul, while maintaining continued compliance with employer immigration duties.
While the Government has stated that employers will not (as yet?) be required to perform document checks on EU workers, their right to work duties under law – and the penalties for non-compliance – remain, and changes to legislation may well follow to bring all of the rules into line.
Ensure your employee document checks are compliant and effective and that you are well positioned to accommodate any changes in the regulations. The changes are also likely to create training needs for HR, site managers and supervisors and other personnel responsible for recruiting and onboarding, to avoid ‘frontline’ breaches and unlawful practices.