Fastest 50: The post-Brexit facts on taking overseas workers

Flora Mewies
Flora Mewies
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With 2018 having already ushered in new UK immigration rules, a key consideration for businesses looking to expand their workforces is whether they will be able to retain their non-British national employees and how they will be able to recruit from overseas post-Brexit.

At the end of 2017, the Office for National Statistics reported that there were 2.38 million people working in the UK who were nationals of another EU country. Despite this, their ability to continue living and working in the UK post-Brexit remains unclear.

It has been promised that those who are already present in the UK will be able to remain. Those who have been continuously and lawfully living in the UK for five years will be able to apply for ‘settled status’ which allows them to carry on living in the UK freely and if they wish, to go on to apply for British citizenship. Individuals who arrive in the UK by March 29, 2019 will be permitted to stay until they reach five years’ continuous residence to enable them to apply for settled status.

Applying for a residence card

To put employers and employees in the best position, EU nationals currently living and working in the UK should consider applying for a residence card or, if they have been living and working in the UK for five years or more, a permanent residence card. This will provide evidence of their current right to work in the UK and that they have been, and continue to, exercise this right. The rules and application process for these cards are clear unlike those for ‘settled status’. Individuals who hold a permanent residence card will be able to convert this to ‘settled status’ in the future with no additional cost.

Clampdown on illegal working

The Home Office is continuing to clamp down on illegal working. The food and drink and care sectors in particular have felt the full force of this recently. The 2016 Immigration Act introduced tough new penalties for illegal workers. An illegal worker now commits a criminal offence with the penalty of imprisonment, fine or deportation.

The requirement on employers to carry out right to work checks on prospective employees is extremely strict and easy to fall foul of. The penalties for employing an illegal worker include a fine of £20,000 per illegal worker, imprisonment for up to five years, disqualification as a director and being named and shamed by the Home Office.

Sponsorship of non-EEA workers

On top of this, the Home Office is making it increasingly difficult for businesses to employ workers from outside of the European Economic Area (which includes the EU). Many companies are registered to sponsor non-EEA workers for employment in skilled roles in the UK. The education, healthcare and technology sectors rely heavily on this.

Organisations applying to become a sponsor are finding it increasingly difficult to obtain a sponsor licence, with more and more seeing a pre-licence visit from UK Visas and Immigration. Further, once the sponsor 
licence has been obtained, organisations have been shocked to find that the monthly quota for restricted certificates of sponsorship has been filled since December 2017 meaning that many employers have not been able to obtain the certificate needed to sponsor their much needed non-EEA recruit 
and to permit them to apply for their 
visa.

Additional sponsor reporting duty

UK Visas and Immigration has introduced an additional sponsor reporting duty which sponsor organisations must not fall foul of and it has expressed its intention to raise the level of the Immigration Health Surcharge from £200 per year of the leave/visa to £400 per year, although the start date has not yet been indicated.

These increased costs and challenges mean that employers must carefully analyse the skills shortages and recruitment needs in their businesses and determine the best way to fill these.

For more information, please contact Flora at flora.mewies@wardhadaway.com or on 0113 205 6797.