Brexit — what should employers do to support EU27 national employees?
As a UK-based employment lawyer, as you’d expect, I take a particular interest in the potential consequences of Brexit on the rights of EU nationals to live and work in this country.
However, my interests go beyond the day job.
In case you hadn’t guessed from my name, I’m Finnish. Although I have lived in Scotland for about 20 years, and have worked here at Ledingham Chalmers for 14 of those, my right to do so has been based on my rights as an EU national.
One of the consequences of Brexit is that it will potentially make me (and millions like me – both here in the UK and elsewhere in the EU) illegal immigrants.
In the UK, this will be a source of concern for employers who may face penalties if they employ someone who doesn’t have the right to work here.
Clearly, I wouldn’t wish to cause difficulties for Ledingham Chalmers; however, my concerns go beyond that: I really don’t want to leave my home, my wife (who is Scottish) or — for that matter — our dog Rory (equally Scottish).
There are steps I’ve taken to avoid this, which I’ll go into in a moment. Unfortunately though, it hasn’t been a universally positive experience.
I appreciate Brexit may appear to be in a state of flux, but as matters stand at the time of writing, EU citizens — excluding UK and Irish citizens, who are exempt — can apply for “settled status”.
If granted, settled status will entitle the holder to live and work in the UK indefinitely, although the status will be lost if the holder leaves the UK for five years (although it’s unclear on whom the burden of showing that falls).
For applicants who have not been in the UK for five years, or who are unable to prove they have, there is pre-settled status. This will enable the holder to stay in the UK and to apply for settled status once they have been resident for five years.
EU nationals resident in the UK who are neither Irish nor British will have until either 31 December 2020, in a “no-deal scenario”, or 30 June 2021, under “Mrs May’s deal”, to be granted either settled or pre-settled status.
If they’re granted neither, they’re subject to deportation.
How easy is the application process for EU workers?
My own experience of the process was mixed.
I was fortunate enough to have an Android mobile telephone (Apple mobile phones aren’t currently supported).
The mobile phone application fairly quickly managed to scan the chip inside my passport and compare that to a selfie I took to establish my identity.
The system then had to check against HMRC and Department for Work and Pensions records to establish whether I’ve been resident in the UK for the necessary five years.
According to the relevant records, I don’t live in the UK despite moving here in 1998. After sending copies of employment contracts and similar documents to the relevant authorities, my pre-settled status was converted into settled status.
All in all, the application process was pretty painless.
If I wasn’t in stable employment, I’ve been with Ledingham Chalmers since 2005, proving my residence would likely have been more difficult.
I’m fairly computer literate too and, as you would expect from a lawyer, have a grasp of the importance of establishing rights. I fear it would be naïve to assume all of the EU nationals working in the UK will be as familiar with the process or appreciate the consequences of doing nothing.
What about UK nationals on the continent?
Of course, it’s not all about EU27 (the EU, excluding the UK) nationals in the UK.
Brexit will equally affect UK nationals based on the continent.
Take the example of my brother: a Finnish national, married to a Bulgarian, living in Luxembourg. They have a child who’s four, who was born in London and is a UK national.
My niece’s right to remain in Luxembourg, and to travel freely to other EU nations, in a no-deal scenario will be subject to the immigration rules of Luxembourg and other countries she wishes to visit. The issue’s the same for employers’ UK workers who work on the continent.
From my perspective, I’ll continue to follow the news and await a degree of certainty and stability, as I’m sure we all will, irrespective of whatever side of the leave or remain chasm we happen to be.
What can you, as an employer do?
The simplest forms of support are likely to be the most effective.
Encourage staff to apply for settled status if they need to. Offer support with the application process, including with any necessary appeals. Also, listen to the concerns your workers may have — regardless of their nationality.
Ledingham Chalmers is well placed to advise employers helping individuals navigate this process: as you’d expect, personal experience like mine can only be useful in that regard.