Brexit and the changing immigration landscape for EU and non-EU nationals - what should you do now?

Qs and As from the Fox Williams Lexology webinar, 14 February 2019

Thank you for your interest in our webinar with Lexology on 14 February 2019. A number of you raised questions during the webinar and here we have set out below the questions you sent in, and our responses. All of the information is current at the time of release, 1 March 2019.

We received questions on the following themes:

  1. Applying for Settled Status
  2. EU nationals and right to work checks
  3. Permanent Residence
  4. European Temporary Leave to Remain (in the event of a no-deal)
  5. The future of UK immigration policy after 2021
  6. Dual nationality for British nationals
  7. Van der Elst provisions for non-EEA employees

1. Applying for Settled Status

Q: How do you apply for settled status if you do not have a smartphone?

A: You can attend one of the centres if you do not have a smart phone. These are ‘EU Settlement Scheme: ID document scanner locations.’ The list of locations can be found on www.gov.uk.

Q: If an employee works for an entity that operates across the EU and is required to work for periods of 6+ months (for example on projects/assignments) outside the UK during the transitional period, what impact does this have on their ability to obtain settled status?

A: We note you mention that the period of work outside the UK will be during the transitional period. If so, it should be possible to undertake a single period of 6-12 months which is counted as allowable absence.

Q: We employ an EU national who has worked in the UK for over five years. However, we have sent him on an overseas posting from November 18 until approximately July 19. Will this affect his ability to apply for settled status? Will he require anything from us to support his application i.e. a letter to confirm his posting?

A: He may be able to rely on a single period of 6-12 months of allowable absence, in which case his ability to apply for and obtain settled/pre-settled status would be unaffected.

2. EU nationals and right to work checks

Q: How do we as employers check someone’s settled/pre-settled status after 29 March? Are we required to note the difference?

A: Employees will need to first submit an application online to obtain settled or pre-settled status. Once the application is granted, this status will be issued online and employers will be able to confirm this online as well. The employee will need to provide consent and a share code to enable their employer to check their status. This should be retained on their personnel file.

Q: Is this only for EU nationals rather than employers?

A: There will be a transition period before employers will be required to conduct right to work checks on EU citizens. If an individual has settled/pre-settled status, this can be confirmed by using the online right to work tool.

Q: For EU nationals employed before 31/12/2020 (assuming no deal), will employers have to retrospectively conduct checks to see if they are allowed to stay? If we only have to check passports/national ID cards how will we know for example who those individuals are that arrived after 29 March 2019 and therefore only have the right to reside (and work) for three years?

A: There will be a transition period before employers will be required to conduct right to work checks on EU citizens. The authorities have said that during the transition period employers carrying out right to work checks will not have to distinguish between EEA nationals who arrived on or before 29 March 2019 and those who arrived afterwards. A valid EEA passport or identity card will be enough to satisfy a right to work check. However, It is good practice for employers to conduct right to work checks during this period to protect themselves against any unexpected changes

Whilst we await formal guidance from the Home Office on this aspect, we know that those individuals arriving after 29 March 2019 will be able to work for three months without applying for European Temporary Leave to Remain (ETLR). Anyone who will be working for longer than three months will need to apply for this.

Until further guidance comes out, it is best practice to request confirmation from the individual that they arrived before 29 March 2019. If not, employers should advise the individual to apply for ETLR.

If an individual has settled/pre-settled status, this can be confirmed by using the online right to work tool.

Q: In relation to workforce planning - EU nationals have not been viewed any differently from UK nationals, therefore we have not recorded nationality in the way we may need to do. What tools would you suggest to start noting the different nationalities?

A: There are several ways to do this. Adopting good practices and putting in place robust measures now will mean that your business is well equipped to deal with any changes.

3. Permanent Residence

Q: I am an EU national and was given Permanent Leave to Remain 19 years ago. Is that now invalid? Since when?

A: Assuming you were granted Permanent Residence as an EU national, this leave should still be valid. You will be required to swap this for the settled status by making an application. If you wish to naturalise as a British citizen, then it would be best to apply now. If not, it would be best to swap this status for Settled Status.

4. European Temporary Leave to Remain (in the event of a no-deal)

Q: Is there any indication how much the Temporary Leave to Remain application will cost? Or when the Government will release the process?

A: The Government has not provided any indication of the application cost or a timeline when further details will be released. It would however be sensible to assume that details will only be published when the Government is certain that a no-deal outcome is more likely than any other scenario. See here.

5. The future of UK immigration policy after 2021

Q: Can you reiterate why an employer needs sponsorship status?

A: The future immigration policy post 2021 will have the sponsorship regime (Tier 2 of the points based system, allowing UK businesses to employ and sponsor skilled workers from overseas) as its centrepiece. There are currently 900,000 businesses in the UK who have not yet applied and who will require a licence to sponsor any individual from outside the UK to enable them to work in the UK. In order to avoid the rush later, it would be advisable to apply for and obtain a sponsorship license now and beat the queue.

Q: Where we have awarded certificates of sponsorships to employees who do not earn £30,000, will we be obliged to raise their salaries?

A: This depends on the job, role and the SOC code. Generally speaking, salaries are required to be raised to the experienced rate (above £30,000 p.a.) after three years.

Q: Can the cost of providing benefits i.e. pension contributions be calculated as part of the £30K salary?

A: The £30K salary has not yet been confirmed– it is a recommendation as regards minimum salary made by the Migration Advisory Committee (MAC) to the Government, and the Government is still consulting on this figure. As such the Government has not published guidance on what can constitute this £30K salary. From past experience however, pension contributions are highly unlikely to be a part of the salary (they are not currently considered as part of a migrant’s salary package for the purposes of meeting the minimum salary requirement). 

6. Dual nationality for British nationals

Q: If a British individual were to apply for European citizenship (via their Spouse) would it have any effect on their own British Citizen Status? i.e. Can a British citizen have dual nationality?

A: The UK allows dual citizenship, but this would depend on which EU member state the applicant is currently a citizen of, and whether that state allows dual citizenship. For example, the Dutch restrict dual citizenship. You should contact the passport authorities or embassy of that member state.

7. Van der Elst provisions for non-EEA employees

Q: What will the status of Van der Elst visas be after 29 March 2019?

A: Van der Elst provisions provide that a non-EEA employee in one EU member state can provide a temporary service in another EU member state. Given that the UK will cease to be a member state, and ECJ judgements will no longer apply, these individuals will need to qualify under the UK Immigration Rules as Van der Elst visas can no longer be applied for after the UK leaves the EU. Options might include coming to the UK as a business visitor or an intra-company transferee, and this is also likely to be the case for non-EEA workers in the UK going to the EU under these provisions.

For more information

Our immigration and employment teams are advising a number of organisations, including those that are UK based or located outside the UK, in relation to the immigration issues impacting on their employees as a result of Brexit and the current uncertainty. Members of our employment team are working with organisations on their future workforce plans.

If you have any questions on the issues raised, please get in touch with your usual Fox Williams contact, or with one of our specialist team whose details are on the left.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.