Brexit & Business What do HR Professionals need to think about and prepare for? On 19th December 2018, the Secretary of State released the long awaited White Paper on our post-Brexit Immigration System. The media grabbed hold of it immediately with headlines like "The Guardian view on the immigration white paper: still a hostile environment" and "The Immigration White Paper is a combination of bad economics and toxic politics". Whilst eye-catching headlines, they do little to convey the immense and significant changes proposed in the 96 page White Paper. This is perhaps the greatest overhaul of our country's immigration system in 40 years. It won't please everyone but it is a start. Having dived into the depths of the White Paper and knowing the practicalities of employing foreign workers, Howard Kennedy have flagged a number of potential concerns that HR professionals might have, and have produced this quick fact sheet to assist in navigating the post-Brexit world of immigration. Frequently Asked Questions
What does the White Paper say about right to work checks? Interestingly, the Home Office have stated in the White Paper that there will be no requirement to conduct retrospective right to work checks on EU employees. If you employ EU migrants prior to 29 March 2019 or 31 December 2020 (the relevant date will depend on whether or not there is a no-deal Brexit) then it will be assumed that they have the right to work and there will be no need for you to conduct a retrospective check. The Home Office have committed to making future right to work checks easier by investing in a digital system where employers can obtain written confirmation from the Home Office of an individual's right to work. This system would replace the document-based checks that are currently completed by HR professionals. The Home Office pledge that the digital status checking service will be quick and will be coming into effect from the end of January 2019.
HR professionals will need to ensure that their policies and procedures are updated to reflect this new change in system and training on how to complete the checks would be advisable. What can we do now to support EU colleagues? The Home Office have designed and launched an EU settlement scheme. In the event of a no-deal Brexit, this scheme will only benefit those who are resident in the UK on or before 29 March 2019. If a deal is agreed then the Implementation Period will take effect which means that Free Movement will continue until 31 December 2020, which further means the EU settlement scheme will benefit those who are resident in the UK on or before 31 December 2020. The best way to support EU colleagues is to plan ahead. This will require HR professionals to have a clear understanding on the position of EU nationals in the event of a no-deal Brexit as well as if there is a deal so that communications and support can be tailored accordingly. Conducting listening exercises with staff so you can understand their concerns can assist HR in developing bespoke support for staff - making staff feel valued and supported.
Summary of our Post-Brexit Immigration System As already mentioned, a number of media outlets have highlighted what is perceived as an entirely negative immigration policy. Whilst there are certain aspects of the White Paper which are unhelpfully vague or appear to be slightly contradictory, there are still many aspects which demonstrate a genuinely pro-business attitude (especially in the context of a post-Brexit world). These changes are going to be phased in over the next two years with a view to have all proposals effective by 31 December 2020. The following table highlights some of the key proposals of the White Paper and how they are an improvement on the current system. Current System Tier 5 (Youth Mobility Scheme) If you are between the age of 18 and 30 and a national of Australia, Canada, Japan, Monaco, New Zealand, Hong Kong, Korea or Taiwan then you can be given a 2 year visa which allows you to work in the United Kingdom.
White Paper Proposal
Dependent on a Brexit deal?
Tier 5 (Youth Mobility Scheme) Due to the fact that the UK want a The White Paper proposes to expand reciprocal agreement for British the countries included in the Tier 5 citizens, it is likely that this will only scheme to include EU Member States. take effect if a Brexit deal can be reached. A reciprocal agreement will be given by the EU so that UK citizens can also visit EU Member states for a period of 2 years.
Tier 2 (General) – High Skilled Workers Tier 2 (General) If you would like to recruit foreign talent into the UK then your application will be subject to a quota system (currently 20,700 per tax year). Applications are approved from the highest earners down and so often mid-level salary earners have to undergo several applications and increased costs before having their application approved.
The Home Office will remove the cap This is not dependent on a Brexit deal so there is no limit on the number of and will likely still take effect in the sponsored workers a business can event of a no-deal Brexit. employ. This will reduce any repeat applications along with costs.
Tier 2 (General) – High Skilled Workers Tier 2 (General) Unless an exemption applies, most employers have to conduct a Resident Labour Market Test (i.e. advertising a role for 28 days) in order to prove there are no settled workers in the UK.
The Home Office will no longer This is not dependent on a Brexit deal require employers to conduct a and will likely still take effect in the Resident Labour Market Test as it is event of a no-deal Brexit. accepted that this does not actually protect the labour market and all it does is increase costs and cause delays.
Current System
Tier 2 (General) – High Skilled Workers Unless an exemption applies, anyone looking to switch into this category whilst in the UK is unable to do so. The applicant must leave the UK, returning to their home country, in order to submit the application.
Tier 2 (General) – High Skilled Workers Unless an exemption applies, employers can only employ an individual for a role that is classified as an RQF level 6 role (i.e. very senior/skilled roles).
White Paper Proposal
Dependent on a Brexit deal?
Tier 2 (General) The Home Office will allow nationals of low risk countries (like the USA, Canada, Australia) to make their application whilst in the UK.
This is not dependent on a Brexit deal and will likely still take effect in the event of a no-deal Brexit. If a deal is reached then it is likely that EU member States will be classified as low risk countries and therefore included in the scheme.
Tier 2 (General) The White Paper proposes to expand the skill bracket to include RQF level 3 to 5. This will increase the potential hiring pool for employers.
Tier 3 – Low Skilled Workers
Temporary Short-Term Work Permit
This category relates to shortterm/lower skilled migration and was never opened as a potential visa category.
The White Paper acknowledges that Brexit poses a threat to certain businesses that are heavily reliant on EU labour (construction and social care being quoted as specific examples). In order to alleviate the problem, a transitional and temporary visa category will be created which will allow employers to have short-term workers come into the country and work for a period of 12 months. The worker will then be subject to a 12 month cooling off period (so they cannot remain in the UK and work during that 12 month period). This is intended for low risk countries and the costs of this visa will start off low but will increase dramatically over time in order to wean businesses off foreign low skilled labour. A review in 2025 will be conducted in order to see whether or not the scheme should continue.
This is not dependent on a Brexit deal and will likely still take effect in the event of a no-deal Brexit.
This is not dependent on a Brexit deal and will likely still take effect in the event of a no-deal Brexit. If a deal is reached then it is likely that EU member States will be classified as low risk countries and therefore included in the scheme.
Current System
White Paper Proposal
Dependent on a Brexit deal?
The White Paper proposed to give students an additional six months at the end of the course during which time they can obtain employment and work.
This is not dependent on a Brexit deal and will likely still take effect in the event of a no-deal Brexit.
Tier 4 (General) – Students Students are only permitted to be in the UK for the period of their study and have limited opportunities to transfer into post-study work.
Students will be allowed to switch into a skilled work permit category up to three months before the end of their course and for up to two years after their graduation.
Antonia Torr can advise on all aspects of UK immigration law, having extensive experience in both business and private client migration. If you have any concerns about how your immigration status will change postBrexit and your options, please do not hesitate to contact Antonia Torr.
Antonia Torr Head of Immigration Services T: +44 (0)20 3755 5835 E: antonia.torr@howardkennedy.com