Britain is finally leaving… what does this mean for your temporary staffing?

The Withdrawal Bill has been passed – both formally and finally. The UK will leave the EU at 11pm on Friday 31st January - more than three and a half years after the referendum. This 31st January date becomes the official date of Brexit and is a very important marker in the sand to note – not just for historical reasons, but because it will dictate certain timelines around immigration rules.

After the 31st January, the UK will enter into an 11-month ‘transition period’ in which it will remain in the EU single market and customs union, but not in any of the EU’s decision-making bodies. The UK will also need to abide by EU rules and pay into the EU budget.

This arrangement will come to an end on the 1st January 2021, by which point both the EU and the UK hope to have negotiated their future trading and security partnership. Whilst not all the detail will be clear until early next year, the release of the Migration Advisory Committee report coupled with the Withdrawal Bill gives us an insight into what a post-Brexit world looks like from a right to work and employment law perspective.

Free Movement

Free movement, as it currently stands under EU law will end on the date of Brexit - the 31st January 2020. However, Parliament has provided that much of the free movement framework will remain over the transition period unless legislation is passed to the contrary.

The few small changes to free movement during the transition amounts to keeping out or deporting EU citizens who commit crimes by applying tougher UK criminality thresholds at the border, and when crimes are committed in the UK.

EU Citizens already resident in the UK

EU citizens who are resident in the UK before 11pm on Brexit day (the 31st January 2020), as well as their family members, will be eligible to apply to the EU Settlement Scheme (if they haven’t already). This will enable them to obtain an immigration status to work in the UK for as long as they wish. Resident EU citizens will have until the 30th June 2021 to apply to the EU Settlement Scheme.

By the end of 2019, more than 2.7 million people had applied (78% of the estimated EU population in the UK) and almost 2.5 million applications had been processed and granted either settled status or pre-settled status. Only six applications had been refused. 

EU citizens moving to the UK after Brexit

During the transition period of the 31st January 2020 until 31st December 2020, EU citizens and their family members will be able to move to the UK to work, as was the case before Brexit. But EU citizens who move to the UK after the 31st January, and who wish to stay beyond 2020, will need ‘permission’.

A popular route is likely to be settled and pre-settled status. As a reminder, if an EU citizen has started living in the UK by 31 December 2020 but does not have 5 years’ continuous residence when they apply for settled status, they will usually be awarded with pre-settled status, and can then apply for settled status after 5 years’ residence. https://www.gov.uk/settled-status-eu-citizens-families/what-settled-and-presettled-status-means

Any EU citizen, already resident in the UK, looking to apply for a new job after the 31st December 2020 would have to demonstrate they have either settled or pre-settled status. The proposed EURO TLR bridging visa will no longer go ahead/be applicable under the terms of Brexit. Organisations can discount this from their checks. Instead it will be a clear case of whether you have arrived before the 1st January 2021 and have a right to settled or pre-settled status -  or whether, if you wish to arrive after that date, you meet the new immigration rules (whatever they may be).

It’s worth reminding readers at this point that all the right to work arrangements for EU citizens will also apply to citizens of the EFTA states (Iceland, Liechtenstein, Norway and Switzerland).

However, the mobility of Irish citizens will be governed by different rules - the Common Travel Area (CTA) arrangements. Irish citizens will continue to have the right to enter, live and work in the UK without requiring permission or a specific immigration status. The same rights will apply for UK workers in Ireland.

So, what does this all mean for Right to Work checks?

Employers and agencies will not be required to distinguish between EU citizens who moved to the UK before or after Brexit (the 31st January 2020) until the new, points-based immigration system is introduced from January 2021.

Until the 31st December 2020, checks on, for example, an EU citizen’s right to work, will be undertaken as they are now, and all EU citizens will be able to evidence their rights here using their passport or national identity card. Alternatively, if they wish to do so, an EU citizen will also be able to use their digital status, granted under the EU Settlement Scheme via the Home Office’s digital status checking service, to any employer or other third party who needs to see it: https://www.gov.uk/prove-right-to-work

Put simply: the same right to work checks that are in place now for EU workers continue until 31st December 2020.

It is only when the new, points-based immigration system is introduced from January 2021, that employers/agencies will need to check that, in respect of any new recruitment, an EU citizen has a valid UK immigration status (including settled status, pre-settled or an appropriate visa), and not just an EU passport or national identity card.

The current thinking is that this check will only need to be undertaken when that individual applies for a new job after the 31st December 2020. It is important to note that the plan is not to check retrospectively. Only moving jobs will trigger the requirement. This is an interesting point, although not that helpful for temp recruitment where workers change jobs regularly.

A closer look at what a new immigration system could encompass

The government has said it wants to introduce a new, points-based immigration system from January 2021. The independent Migration Advisory Committee was commissioned to review comparators across the world but has just announced that a points system is not a straight-forward, easy approach without issue.

Their recommendation is a mixed system, which would rely on a minimum salary threshold for those people coming to the UK with a job offer, and a points-based system for those coming to the UK without a pre-arranged job. Although, government is not obliged to take their suggestions on board – the expectation is MAC will considerably influence the Immigration Bill, supposedly due in March.

Another Mac suggestion is creating a pool of highly scoring applicants to the points system (those without a job offer) from which there is a monthly draw, with a cap on the total number admitted each month.The government would determine which “characteristics” are awarded points, with the MAC highlighting grasp of English, qualifications, age, whether the person studied in the UK and knowledge of STEM or creative skills as priorities.

The committee additionally recommends supporting a pilot visa to attract people to work in remote parts of the UK, and improved monitoring of the immigration system to allow the UK to assess whether the new system is working.

The existing Tier 2 (General) highly-skilled worker visa scheme is seen as the most likely vehicle to deliver the new migration process.

The minimum salary threshold under a future immigration scheme was mooted at £30,000 but the MAC Advisory committee has suggested lowering this to £25,600 – although with the caveat that some highly paid occupations should attract a higher threshold, so UK workers are not undercut. MAC also recommends that the threshold for most teachers and NHS workers should be based around their national pay scales – and that looking at what certain jobs command salary wise, is a good way to set thresholds for many jobs - not just public sector ones. Finally ‘new entrants’ to the world of work (those holding a Tier 4 student visa, those applying for a role where the employer used a university milkround to satisfy the Resident Labour Market Test and those under the age of 26 on the date of their application) should be given permission to work in the UK with a minimum salary of £17,920 per year.

Note: There has also been an announcement of a new uncapped, fast track Global Talent scheme to attract leading scientists, researchers and mathematicians – but this merely replaces an extremely similar Tier 1 Exceptional Talent route.

Has anything been said about immigration of ‘lower’ skills?

When a new immigration system was first talked about a few years ago, a specific visa for lower skilled workers was mooted. This would have been valid for 12 months, after which time the worker would need to work outside of the UK for 12 months (a cooling off period). Under the original proposals the visa would only be offered to nationals of specified countries, so-called ‘low risk’ to public security where the UK has negotiated migration commitments. The visa would not allow any access to public funds or the right to extend a stay, bring dependants in or lead to permanent settlement. However, the visa would not be tied to a specific employer, allowing workers to move between organisations. This would have been unusual for a managed visa entry route which usually requires a job offer to already be in place, although the worker would need to pay a fee for the visa and be subject to a criminal record check.

It remains to be seen whether this then will be considered going forward, however, from what the MAC said on P10 & p190 of their report, this would seem to be far from certain.

Workers’ Rights

The other major one to watch post-Brexit is what happens with workers’ rights – many of which originate from EU law. Unfortunately, there is little that can be said with any certainty about these yet. Workers' rights protections have now been completely removed from the Withdrawal Bill. Government says these will now be part of a separate bill, the Employment Bill – but there is no concrete detail on this in terms of content or timing. There was a small snippet of insight during the Queen’s Speech which suggests the government’s proposed Employment Bill will cover a range of rights – including those that have been previously granted under EU law, as well as additional employment-related issues (such as the creation of a single enforcement body and other outstanding matters from the Taylor Review).

It is also worth remembering that during the transition period EU law will continue to apply to the UK.

What next?

It has been an extremely long road to Brexit and now that date is about to be reached, the challenge is to ensure engagement and understanding with the Government’s published rules - not always an easy task given the amount of  previous scenario planning and thus quickly outdated information still floating around such as the Euro TLR visa – which no longer applies.

GRI is launching a brand, new agency hub for our panel agencies, which will be both linked to and promoted throughout the e-tips® system, so that our agencies have access to the very latest simple and straightforward advice online. This will help support them in their end communications to workers.

Our agencies are also extending their messaging across their EU offices to make EU workers aware the UK is still a great place to work, as well as exactly what a worker needs to work here – including the fact that during the transition period the same rules continue. Our agencies are also on standby to communicate whatever the immigration system may be, and to remind workers that arrive ahead of the 31st December 2020, that it is better to apply for pre-settled status/settled status sooner rather than later, as anyone changing jobs after the 31st December will need to have an official immigration status.

The next key stage will be the release of the Immigration bill expected in March which we hope will include routes to the UK – like the one-year visa for lower skills which will ensure the UK’s reliance on certain temporary worker skills is not hampered. Watch this space.

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