Whatever your feelings about Brexit – in or out – an agreement was finally reached. It had been a long time coming, and despite being somewhat overshadowed, it was important that employers were aware of any potential implications, especially in areas such as leadership development and people management training.
The good news was, for that time at least, there weren’t a huge number of changes in HR legislation. Parliament had adopted EU employment law, and there wasn’t a huge rush to make changes.
There were, however, two areas that were important to make employers aware of. In essence, a new immigration system was introduced; as of 11 pm on December 31, 2020, free movement for European nationals ended, leading to implications for GDPR.
How did that affect employers?
Different immigration rules for European nationals were affected by when the person first came to the UK. European nationals and families in the UK before December 31, 2020, had to apply under the EU Settlement scheme to live and work. This applied to those who previously spent time in the UK and were overseas. It was an online process and was free, but there was a deadline of June 30, 2021.
Only certain people were exempt from making an application – those with indefinite leave to remain/enter and Irish nationals. It was important to remember that people holding a permanent residence document still had to apply under the Scheme.
Not applying by the deadline could result in the loss of the right to live and work in the UK after June 30, 2021. As an employer, there was also the risk of committing a criminal offence if they continued employing them. It was crucial for employers to act proactively, avoiding the risk of key personnel losing the right to work in the UK.
Settled status
Living in the UK for a continuous 5-year period made individuals eligible for settled status. Continuous residence required being in the UK for at least 6 months in any 12-month period over 5 years. Spending more than 6 months outside the UK in any 12-month period typically broke continuity. Additionally, it made them ineligible for settled status.
Pre-settled status was granted to those who had been resident in the UK for less than a 5-year continuous period. This was granted for 5 years and couldn’t be extended. Therefore, they needed to be present in the UK for at least 6 months in any 12-month period. If they were unable to apply for settled status after 5 years, they would either need to leave the UK or apply to stay in the UK under a different immigration category.
Employers had to monitor employees with pre-settled status to prevent breaks in continuity caused by overseas secondments or business travel. This ensured eligibility for settled status.
For European nationals and families who first entered the UK from January 1, 2021, there was no longer any advantage to holding a European passport. They were treated in the same way as non-EEA nationals and could not apply under the Scheme.\
In most cases, employers needed to sponsor European nationals under the new Skilled Worker route and needed a sponsor license to do so. However, it was only possible to sponsor individuals in medium-skilled or highly-skilled roles. Therefore, organisations currently reliant on a low-skilled European workforce were not able to sponsor people in the majority of these positions.
Employers needed to be aware that sponsorship involved significant costs for them, even where the skill threshold was met. Immigration fees for sponsoring one person could reach £9,500 over five years. The processing time, often months, starts from initiating the visa process. On top of that, there were onerous compliance obligations as well.
Brexit Employers’ Checklist
What should employers have done?
- Establish who in your organisation needed to make an application under the Scheme. If not, they should have carried out an audit.
Encouraged members of their European team to apply under the EU Settlement scheme before June 30, 2021. – Stay in the UK (‘settled status’): step by step – gov.uk. - Considered how much support the business wanted to provide to employees affected, e.g., training, support, etc.
Diarised to undertake right to work checks on all employees in May/June 2021 and recorded any pre-settled expiry dates to diarise for further right-to-work checks. - Been careful when offering regular business travel or secondments for employees holding pre-settled status.
Considered applying for a sponsor licence now as this was needed to sponsor European or non-European nationals from then on. Also, taken advice on the sponsor obligations and HR processes that needed to be in place first. - Ensured compliance with sponsor obligations if they already held a sponsor license to be prepared for any Home Office visit. Sponsors’ licenses could be revoked for non-compliance. They may have considered an immigration audit.
- Reviewed their current recruitment models, especially if they relied on low-skilled European workers. Remembered the cost involved in sponsoring European and non-European nationals.
- Reviewed offer letters and employment contracts for all employees, which should have stated that employment was conditional on the person having the right to work and the employee providing satisfactory evidence of that right to work.
- Considered European nationals who were resident overseas but needed to work in the UK on occasion. In some cases, they may have qualified for the new Frontier Worker Permit.
Data Protection (GDPR)
One piece of this huge document, clause 4, referred to data protection. It confirmed that personal data could flow from the EEA into the UK for 4 months but this could be extended to 6 months, while we awaited the EU decision on “adequacy.” This appeared to mean that our GDPR was adequate enough to meet theirs. Ours was based on theirs, so fingers were crossed!
We were pretty sure that provided you could demonstrate compliance (with respect to UK-EEA data transfers) at December 31, you should still be able to in January 2021.
Our team worked as hard as we could to ensure we were providing you, our most valued clients, the most relevant and up-to-date information. We review this regularly and inform you of any amendments. If you have any further questions, please don’t hesitate to contact us on 0161 738 1808.