On 23 June 2016 the UK voted in the EU Referendum to leave the European Union (EU). A majority of the population voted to Leave, rather than Remain, triggering the start of preparations for the UK withdrawing from the bloc.
The Prime Minister used the 2016 Queen’s Speech to reiterate the government’s commitment towards protecting and enhancing worker rights following Brexit.
Although it is not clear what amendments may be made to employment law, or when any changes will take effect, it is possible to predict that some changes will take place. However, one area that will see change is the rights of EU nationals to work in the UK.
The date when the UK is expected to leave the EU (originally the 29 March 2019) has now been delayed to 31 October 2019. This has implications for how the EU Settlement Scheme operates under a ‘no deal’ exit.
There is currently uncertainty over when ‘Brexit day’ will take place. Originally scheduled for 29 March 2019, this date has now been delayed to 31 October 2019 but may take place on a delayed date.
Please bear in mind that a delayed departure from the EU will affect the guidance currently available from the Home Office and the government on Brexit matters, including the EU Settlement Scheme, when freedom of movement ends and any potential transition period.
Right to work checks will remain the same after Brexit
Until 1 January 2021, the Home Office has confirmed that right to work checks on EU and EEA nationals will continue as normal, under the processes laid out within the prevention of illegal working guidance published in January 2019, regardless of whether there is an exit with or without a deal
No differentiation between those who arrived in the UK before the exit, and those who arrived after the exit, will be necessary. Instead, normal right to work checks will be carried out by organisations under the process set out within the Home Office’s guidance, as updated in January 2019.
Irish citizens in a deal and ‘no deal’ exit
Checking the right to work of Irish citizens will continue as normal, eg carrying out manual documentary checks on documents provided by the individual, such as their passport.
EU, EEA and Swiss citizens in a deal and ‘no deal’ exit
Right to work checks on these citizens can continue as normal until 1 January 2021, with these individuals providing documents to prove they have the right to work in the UK, such as their passport or national identity care.
The Home Office’s online right to work checking service can also be used to check their immigration status if an individual has been granted status under the EU Settlement Scheme or they have a biometric residence card. This is not a requirement and the individual cannot be made to undertake the online check.
Plans confirmed for EU nationals after a no-deal Brexit
The Home Office has confirmed that in a no-deal Brexit, free movement will end as soon as possible after 29 March 2019 and there will be a transitional period for EU workers until 1 January 2021. During this period, these citizens can freely travel to the UK for work for a period of 3 months.
For stays longer than 3 months the citizen will be required to apply for, and receive, European Temporary Leave to Remain which entitles the individual to remain in the UK for a further period of 3 years. For stays longer than this period, the individual will be required to apply for leave to remain under the new immigration system which focuses on skills, set to be introduced from 2021.
Right to work checks from 1 January 2021
From 1 January 2021, there will be a new right to work check system in place that can be followed by organisations. The Home Office has confirmed that status will be shown through a Home Office online service but no further details have been released.
The Immigration, Asylum and Nationality Act 2006 applies to all immigrants entering the UK after 29 February, 2009. The Act classifies all persons from outside of the EEA wishing to enter the UK to work into five ’tiers’.
The five tiers are:
- Tier 1 – highly skilled workers, for example, scientists and entrepreneurs
- Tier 2 – skilled workers with a job offer, for example, teachers and nurses
- Tier 3 – low skilled workers filling specific temporary labour shortages, for example, construction workers for a particular project (this tier is currently suspended)
- Tier 4 – overseas students
- Tier 5 – youth mobility and temporary workers, for example, musicians coming to play in a concert.
Employers wishing to employ non EEA citizens in Tiers 2 and 5 must be first licensed to do so.