Member Article

The Brexit referendum vote and its potential impact on free movement has already resulted in many businesses struggling to meet their labour needs; the number of EU migrants has declined markedly at a time when Scotland and the UK is enjoying record levels of employment. As a consequence, immigration has risen to the top of many organisations’ agendas to ensure they can recruit and retain the talent they need to grow their businesses and remain competitive.

Despite the Brexit impasse at Westminster, the Home Office appears to be pressing ahead with its plan for immigration reform based on the end of free movement, with a new immigration system promised for the end of December 2021, when the transition period ends. This new system, described as bringing about the biggest change in immigration law in 45 years, involves changes that in many ways will liberalise immigration law, removing many of the barriers that exist currently for employers seeking to recruit international talent.

The proposed changes include removing the cap on the number of overseas workers who can come to the UK, lowering workers’ required skill level from degree level to A-level or higher simplifying the Sponsorship system and abolishing the Resident Labour Market test. Although these changes do represent a liberalisation of the current UK domestic system, they fall far short of free movement, which has acted as a cost-free and barrier-free means of employing EU staff. For the last 45 years, it has been as easy to employ a German or French national as a British citizen.

So how should employers respond to ongoing uncertainty? And what steps can they to take to protect themselves and their businesses. Below, we suggest five practical steps that businesses organisation could take now.

Firstly, all EU nationals and their families who are in the UK now can apply under the Settled Status Scheme. EU nationals who have resided in the UK for five years (having spent a minimum of six months of every 12 months in the UK) can obtain settled status. Those who have spent less than five years in the UK are granted pre-settled status. Under the terms of the Withdrawal Agreement, this right to apply for settled status will apply to all those EU nationals and their families who come to the UK until the end of the transitional period, 31 December 2021. In a no-deal scenario the right to apply under the Settled Scheme will apply to those in the UK by 31 October 2019, the revised exit date.

Secondly, in addition to highlighting the EU Settlement Scheme to EU staff, businesses may wish to consider providing additional support to them. This can take the form of timely communications to reassure employees, appointing a dedicated HR contact to deal with these issues and/or providing one-to-one sessions or group sessions with specialist immigration solicitors.

Thirdly, businesses should consider auditing their workforce to determine the extent to which they rely on their EU staff in order to identify any potential skills gaps. Now is the time for businesses to look strategically at upskilling staff and reviewing staff reward and retention policies, particularly against the backdrop of a tightening labour market and a more mobile workforce.

Given that the UK Government proposes to subject EU nationals to the same immigration system as non-EU nationals, employers should also ensure they are familiar with the costs and time-scales involved in visa applications. A non-EU skilled worker coming to the UK will face a visa fee, a surcharge to use the NHS (increased in December by Parliament to £400 per person per year of the visa), and, if they are accompanied by family members, duplicate fees for each family member. For a family of four coming to the UK on a five-year visa, the total fees visa fees and health surcharge would amount to £12,880 (visa fees of £1,220 each plus health surcharge of £2,000 each). Businesses, unless an exemption applies, will have to pay an Immigration Skills Charge of £5,000 (set at £1,000 per year) and there will be a further fee of £199 to issue a Certificate of Sponsorship - additional fees will apply if the employer requires to obtain a Sponsor licence. Finance managers will need to factor these costs into their annual budgets and boards will need to determine their HR policies on visa fees, always ensuring that such policies comply with anti-discrimination laws.

Finally, business may wish to engage in the 12-month consultation period announced by the Home Office and make their voices heard. If free movement does end, then every business in the UK has an interest in ensuring the new immigration system is as flexible, low-cost and simple as possible.

Jacqueline Moore is head of Shepherd and Wedderburn’s immigration team. For more information, contact Jacqueline on 0131-473 5451 or at[email protected], or visithttps://shepwedd.com/expertise/immigration-solicitors.