28 Feb 2019

In the midst of political uncertainty; the endless debates happening in Westminster; and the concerns from an increasing number of businesses over the prospect of a no deal, there is no doubt that Brexit is creating a lot of anxiety in all aspects of life and business. What's more, the recently launched Immigration White Paper outlining the Government's ambitions for the new system as well as the EU settlement scheme have generated substantial unease.  

Throughout January and February, WBD delivered a series of Brexit seminars looking specifically at the issues around immigration and EU workers' rights. Taking place across the firm's UK offices, WBD immigration and employment law specialists Andrew Tingley and Alan Kennedy gave an extremely topical update to over 150 clients and contacts including business owners, senior decision makers and HR professionals. 

Andrew Tingley, WBD Partner and Head of Immigration, outlined the rights of EU workers in the event of both a deal and no deal scenarios; the three million EU citizens that will need to apply for EU settled or pre-settled status and the limitations and glitches of the application process. He also highlighted the position post Brexit of UK nationals living in the EU, EEA and Switzerland which will be of major concern for many companies who regularly send employees on secondment, business or have a UK workforce in the EU. 

Regardless of whether we have a deal or not, British citizens will become third country nationals in the EU and will therefore be subject to greater immigration restrictions. This will have major implications for businesses that send British employees to work in the EU and will be a real change both mentally and in practice after decades of frictionless and seamless borders and custom checks. In the event of a no deal Britons living in the EU will essentially become unlawful citizens unless each EU country regularises their position. Schemes have been announced in some EU countries already but not everywhere and in certain countries UK nationals will become illegal citizens overnight with no access to healthcare and no right to work unless a bilateral agreement is agreed with the UK beforehand.  

WBD Associate Alan Kennedy who specialises in immigration and employment law provided an update on the new Immigration Whitepaper published on 19 December 2018 which sets out the proposals for a new post Brexit immigration system. This aims to put an end to the free movement of EU workers and offer a unified immigration system for EU and non-EU workers. The new system has placed a strong emphasis on a less restrictive regime for medium and high skilled workers but limits access for low skilled workers which will make it harder for those workers to come to the UK after January 2021. There are also increasing concerns about the salary threshold which has been proposed at £30,000 and will mean that employers in the UK wishing to employ workers from the EU will have to match this. 

It is expected that sectors such as social care, retail, construction and hospitality which are already reporting skills shortages will be the most impacted by the new rules. To try and address this, the Government has proposed a new temporary visa route which will remain open until at least 2025. Workers from 'low risk countries' will be able to come to the UK under this route and there will no requirement for a job offer or sponsorship. However the low skilled visa route will only allow EU nationals to come to the UK for up to 12 months and will be subject to a cooling off period.  It also offers limited benefits with workers not being able to bring family members, there will be no access to benefits and no path to settlement. The Government recognises some of the flaws in the Bill and will be undertaking a year of major consultation and engagement with businesses and trade body organisations before it becomes law. 

Alan also warned of the new procedures and right to work checks that will need to be carried out post Brexit and that failure to comply could leave employers vulnerable. Ahead of our departure from the EU it is essential that businesses carry out an audit of their workforce; assess skills and labour shortages; readjust their budgets to facture the increase in costs incurred by the new immigration system; consult with EU workers to help them through the EU settlement scheme; and last but not least engage and respond to the upcoming Government's consultation on the new Immigration Bill. 

Alan concluded by saying that since the Brexit vote there has been a rise in the number of racial harassment complaints in the workplace and businesses need to make sure their policies are up to date and that managers are fully trained on those policies to try and limit the risk of any claims.  

For more information on immigration and EU workers' rights issues, get in touch with Andrew and Alan.