Brexit: It’s a personnel issue

 

European Union nationals have contributed a lot to the UK workforce. Popular culture celebrates the “Polish plumber” but EU citizens have also been important to sectors from high finance to healthcare and fruit-picking.

 

Statistics circulated by the City of London earlier this year showed that 12% of City workers in high-value jobs were from European Economic Area countries. Fruit and vegetable producers rely heavily on workers from EU countries such as Bulgaria and Romania.

 

With the demise of EU membership, and the free movement of workers, maintaining such staff can be achieved by an application under the mandatory EU Settlement Scheme. Otherwise, the worker will not have proof of their right to live and work in the UK. At an Enterprise Ireland’s Brexit clinic, Philip McNally of KPMG outlined the steps necessary to retain EU staff under the proposed scheme.

 

The UK government has published a video explainer on how the EU settlement scheme works which is available to view here

 

 

Free movement before and after Brexit

 

Under the current state of EU-UK negotiations, free movement of people continues until 31st December 2020. However, if there is no final agreement and Britain leaves without a deal, free movement could end on that date.

 

In preparing for Brexit, McNally stressed the need to have all paperwork completed and filed, and for workers to have all the documentation to prove their length of stay and employment in UK territory. “And if an application [under the EU Scheme] has not been made, a person will not have proof of their right to work and remain in the UK,” he warned the Brexit Clinic held in Dundalk.

 

The right to remain and work post Brexit

 

There are currently around 3.8 million EU nationals living in the UK. EU nationals will need to lodge their application to remain. This will allow EU nationals (who qualify) the right to remain and work in the UK after 31st December 2020. “The scheme has been trialled in a number of NHS trusts and universities,” McNally said. However, although the aim was for 4,000 responses, slightly over 1000 people actually lodged their applications, which he saw as a warning sign.

 

“If you look at a similar situation in the United States, there was the DACA legislation [which allowed undocumented child immigrants to remain], before it was cancelled. But only around two-thirds of those eligible made applications under the scheme,” he said, demonstrating that even when a measure is beneficial, individuals might not take advantage of it.

 

Employers must be proactive

 

So, employers are urged to be proactive in promoting the application process, as soon as possible. Any employer found to have EU staff without permission to remain is liable for a fine up to £20,000 per worker.

 

“You must make the assumption that workers themselves may not make the application,” McNally told the audience. Employers themselves need to be able to navigate the system, and encourage and assist their employers to complete the applications.

 

McNally explained that the freedom of movement also applies to citizens of the European Economic Area, which includes Norway, Switzerland, Iceland and Liechtenstein as well as the EU countries.  The EU Settlement Scheme only applies to EU citizens, and the picture for the other countries is not clear yet, as their position is still under negotiation. However, any employees who have been in the UK for more than 5 years, and are either a citizen of Norway, Switzerland, Iceland and Liechtenstein may make an application for “Permanent Residence” instead.

 

The general rule is that a person who has lived and worked in the UK for five years will be granted “Settled Status” which is essentially a non-time limited right to remain in the UK. A person who has lived and worked in the UK for less than five years will be granted “Pre-Settled Status” which will allow them to remain in the UK until they have been in the UK for five years. Once they have been in the UK for five years, they may apply for “Settled Status”.

 

McNally warned employers about offering advice on immigration, as it is a criminal offence for anyone other than a solicitors, barristers or registered immigration advisers to provide such advice.

 

Another situation to consider is EU staff who must visit the UK regularly for work. Their situation, too, will have to be clarified by 1 January 2021.

Rules for Irish citizens

 

Irish citizens are an anomaly under the new application process: they are not required to seek the new status. McNally said, “they can apply if they wish”, but there is no onus on them to do so.

 

The British Cabinet supported a Migration Advisory Committee report which indicates the direction in which formal policy or law is developed.

McNally urged immediate action to preserve valuable EU staff.

 

“If you have only one employee who is affected, perhaps give them the correct information, as that is a low risk to you. If you have a number of employees affected, consider taking action and getting assistance in guiding your employees to make the appropriate applications as your risk is substantially higher.”