Last reviewed 11 November 2020

Coronavirus news has dominated the headlines for the last few months, but Government plans are still underway to carry out Brexit at the end of the year. Some employers are still waiting to see what the impact of this will be. On 23 June 2016, the UK voted to leave the European Union (EU). Originally scheduled for 29 March 2019, the date the UK was to officially leave the EU was delayed to 31 January 2020, and on this date, the UK left the EU.

A withdrawal agreement was negotiated and passed by both the UK and EU Parliaments and a transition period is now in place until December 2020 so that future trade agreements can be negotiated. However, the coronavirus pandemic has resulted in delays to negotiations and, though unlikely, it remains to be seen whether there will be any further delays.

In March 2019, the UK introduced an EU Settlement Scheme to register EU nationals already residing in the UK prior to its departure from the EU. Likewise, before a localised coronavirus incident turned into the pandemic as we know it, further immigration measures were taken in the form of amendments to the already established points-based immigration system. Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores this in more detail below.

EU Settlement Scheme

EU nationals currently employed to work in the UK can continue to do so despite Brexit. The Government's EU Settlement Scheme was introduced to allow existing EU nationals residing in the UK to apply for Indefinite Leave to Remain (ILR). To make use of this scheme, employees must have been in the UK by 31 December 2020, with the subsequent deadline for applications being 30 June 2021. This means that employers will be able to retain any EU nationals who are already part of their workforce (by 31 December 2020) if they apply for settled status by 30 June 2021.

Employers must not exert any unnecessary pressure on individuals or expose them to any other form of detriment if they choose not to apply for ILR status. As existing EU nationals will still be able to live and work in the UK freely until 31 December 2020, dismissing employees in the interim for being unwilling to apply for settled status will be potentially discriminatory. Instead, employers should consider their options if they are faced with loss of staff as their EU workers haven’t applied for ILR status — this can be in the form of awaiting further government advice or coming up with alternative options now, to deal with any potential gaps in their workforce after 31 December 2020.

Information released by the Government on 8 October 2020 shows that, from 30 March 2019 to the end of September 2020, over 4 million applications have been made to this scheme — almost 3.7 million of those applications came from England, 204,700 from Scotland, 67,200 from Wales, and 66,300 from Northern Ireland.

Points-based immigration system

With the Brexit transition period in full swing, employers are likely already looking ahead to 1 January 2021 and how future immigration rules will impact their businesses. The Government has announced that from 1 January 2021, EU and non-EU citizens entering the UK will be treated in the same way. Under this new system, non-citizens who seek to work in the UK, following the end of EU free movement on 31 December 2020, will need to meet certain criteria before they can do so.

Criteria against which applicants will be scored includes:

  • having a job offer from an approved sponsor

  • seeking to undertake a job of an appropriate skill level

  • English speaking abilities

  • salary level from £23,040

  • job offer within a shortage occupation

  • academic qualifications achieved at PhD level.

These new rules are likely to have an impact upon employers who have come to rely on so-called low-skilled labour from the EU. In particular, there is expected to be a knock-on effect in the hospitality and catering industries, alongside agricultural operations that make use of seasonal workers from overseas. Although the Government does appear to want to provide a degree of flexibility to tackle these potential issues — by making some requirements “tradeable”— employers should not believe that their sector will automatically meet the requirements of having a skills shortage just because they are struggling to source workers.

Parting note

As we creep towards 1 January 2021, employers need to make sure they are ready for these changes. They represent a clear goal of reducing the number of low-skilled migrants coming to the UK and, if this is something an employer’s business relies on, they should consider steps they can take to limit the potential impact. Employers can:

  • encourage EU nationals already working for the business to apply for “settled status”/ILR under the EU Settlement Scheme before the deadline of 30 June 2021

  • provide assistance, if possible, to those who wish to apply

  • explore increasing the skills levels of current staff members, something that may encourage their retention and progression into roles that may be difficult to fill in future.

While these developments may be subject to change, they give a strong indication of how immigration will function post-Brexit for all foreign nationals, including EU citizens. As such, it is important to bear this in mind for all future planning and decision-making.

Additionally, the implications of the much dreaded “no-deal Brexit” are likely to be wide reaching and it is currently unclear how other areas of employment law will be affected as a result. To this end, it is important that employers keep up-to-date with all immigration and employment law developments as Brexit progresses, and make sure staff are given all the information they require.