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Access to the post-Brexit EU workforce

First publishedin Aggregates Business Europe
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Lisa Mulholland
As we approach the date when the UK is due to leave the EU there are many unanswered questions. Not least is how UK businesses will be able to access the EU labour market. This has potential implications for many businesses in the aggregates sector where EU nationals fulfil some key roles. Lisa Mulholland, a specialist immigration lawyer from Stephens Scown LLP, explores the potential scenarios.

EU Settlement Scheme

In unprecedented fashion, all EU nationals in the UK will be required to submit applications to the Home Office under the EU Settlement Scheme if they wish to continue living and working here after the UK leaves the EU. People who have been living in the UK for a continuous period of five years will need to apply for settled status. Those who do not yet meet the required period of residence will need to apply for pre-settled status, with a view to applying for settled status later.

A pilot is underway and EU nationals with valid passports can apply under the scheme now. It will be fully open to all applicants on 30 March 2019. Applications must be submitted by 30 June 2021, provided the UK strikes a deal with the EU. In a no-deal scenario all applications must be submitted by 31 December 2020.

Free movement of EU nationals after Brexit

Free movement of EU nationals post-Brexit depends on whether or not there is a deal or not. If the UK strikes a deal with the EU, free movement of EU nationals will continue during the transition period (30 March 2019 – 31 December 2020). During this time the government will prepare new immigration rules. This will mean that EU nationals can continue to arrive in the UK during this period to work for your business, irrespective of whether they were in the UK at the point of Brexit.

If there is a no-deal Brexit, free movement is likely to end the day after the UK leaves the EU. This means that people from the EU (who are not already in the UK at this point) will not be able to come to the UK long term to work without permission from the Home Office. People who wish to stay in the UK for longer than three months will need to apply for and receive European Temporary Leave to Remain, which will be valid for a further three years. EU nationals who wish to stay for longer than three years will need to make a further application under the new future immigration system, which will begin from 2021.

New immigration system post-Brexit

The long-overdue white paper on immigration, which was published by the government in December 2018, gives an indication of what the UK immigration system may be post-2021. Its key points are:

  • All overseas nationals will need permission to work or study in the UK regardless of which country they are from. This will result in one immigration system for EU and non-EU nationals alike. This signals the end of free movement from the EU.
  • The government has made it clear that priority will be given to highly skilled migrants, with no specific route for low-skilled workers.
  • Transitional and temporary short-term workers’ route until 2025. This route is for low-skilled workers.
  • Cap on the number of skilled workers coming to the UK to be abolished.
  • Consultation on the minimum salary threshold.

If an employer wishes to employ a non-EU member of staff, it must currently have a sponsor licence and comply with the Residence Labour Market Test unless the role is on the shortage occupation list. This involves demonstrating that there is no suitable settled worker for the vacant role. The government has confirmed that it will abolish the Resident Labour Market Test from 2021.

What should businesses be doing now?

Despite the uncertainties, which at the time of writing even include the date of Brexit, there are two important things that employers should be doing now. The first is to consider if your workforce will be affected by free movement coming to an end and if you need to apply for a sponsor licence to continue to recruit from overseas. If so, prepare for this ahead of time and seek advice early.

The second is to ensure that your workforce is fully aware of the EU Settlement Scheme and that your EU national members of staff submit their applications in time.

Lisa Mulholland is a specialist immigration solicitor at Stephens Scown LLP. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team is recognised by independent guides to the law Legal 500 and Chambers. To contact Lisa, please call 01392 210700, email immigration@stephens-scown.co.uk or visit www.stephens-scown.co.uk

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