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Deal or No Deal: Employers Urged to Make Preparations For Post-Brexit Recruitment

July 2019 - Employment. Legal Developments by DavidsonMorris.

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The deadline of 31st October 2019 to agree a Brexit deal is fast approaching, leaving employers less time for critical Brexit recruitment planning.

As we near the Brexit deadline, the prospect of a No Deal exit seems more likely than ever.

As both the UK and the EU continue to invest and make preparations for a no deal scenario, employers are being urged to do the same.

Workforce recruitment and retention planning for both the deal or no deal scenarios will be business-critical.

No Deal arrangements

Looking specifically at EU immigration, the Government published its no deal arrangements in January. Under the plans, EU free movement ends with immediate effect. After the UK leaves the EU, EU citizens not already in the UK will be allowed to enter the country, but they can only stay for a maximum of 3 months.

To remain in the UK lawfully beyond this 3 month period, they will have to apply for the new ‚ÄėEuropean Temporary Leave to Remain‚Äô, which will allow the individual to work, live and study here for up to 3 years. At the end of this period, the individual must either leave the UK or apply to remain under a different visa route. It will not be possible to extend this leave, nor will it count towards EU settled status, permanent residence or indefinite leave to remain.

EU citizens with British citizenship will not be affected by changes to the immigration rules.

Deal or no deal: impact on recruitment & retention

The end of EU free movement will abolish the rights of EU citizens to come to the UK to work in any capacity without first having to apply for Home Office permission.

If we see a no deal Brexit, and on the assumption that EU citizens are aware of the change in rules, and intend to proceed with an application for European Leave to Remain where it is required, the eligibility requirements for this route are not yet known. This makes it extremely difficult to gauge the likely success rate of applications and the impact the new rules will ultimately have on the availability of EU workers in the UK.

Where EU citizens are granted temporary leave, at the end of the 3 years, the individual will have to leave the job and the country, unless they are granted leave under a different route. This will be a significant concern for employers looking for longer-term workforce solutions.

It is also not clear whether EU citizens will be able to leave the UK at the end of the initial 3 months and return to ‚Äėreset the clock‚Äô, thereby negating the need to apply for leave to remain.

Deal or no deal, the government is continuing with its reform of the UK immigration system to take effect by January 2021.

The new system is to be based on skills over nationality, which will profoundly affect recruitment, onboarding and immigration compliance strategies and practices in both the short and long term.

In recognition of the expected impact on the sector and in response to industry concerns, the government has pledged special provisions to benefit sectors, such as health and social care where shortages in lower skilled workers would need addressing outside of any skilled visa routes.

What should employers be doing now?

With the new EU Settlement Scheme now fully open, employers are encouraged to take action to ensure their EU employees feel supported and assured through the process and to minimise EU staff attrition. Measures could include offering settled status presentations and sharing guidance materials.

While the Government has stated that employers will not (as yet?) be required to perform document checks on EU workers, their right to work duties under law ‚Äď and the penalties for non-compliance ‚Äď remain, and changes to legislation may well follow to bring all of the rules into line.

Looking at the bigger picture, recruitment strategies, budgets, timescales and policies should be reviewed in light of the no deal plan, restrictions on EU worker access and the longer-term immigration system overhaul, to avoid disruption to workforce supply while maintaining continued compliance with employer immigration duties.

Anne Morris is an immigration solicitor and founder and managing director at UK immigration law firm, DavidsonMorris.