UK employers await news on future status of EU workers

Out-Law News | 15 Nov 2018 | 3:45 pm | 2 min. read

UK employers continue to await clarification about their ability to access EU labour once the UK leaves the European Union, an expert has said.

The lengthy draft withdrawal agreement agreed between UK and EU negotiators makes no changes to either party's previously announced position on the rights of EU workers in the UK and UK workers in the EU during the post-Brexit transition period, which is due to run until 31 December 2020. The UK government is expected to publish a 'white paper' on immigration reform later this month, in which it will respond to recommendations by the independent Migration Advisory Committee (MAC).

"The parts of the draft withdrawal agreement published in March 2018 dealing with immigration were 'green lined', and so we have not been anticipating any substantive change in the final version of the withdrawal agreement," said immigration law expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com. "That has turned out to be correct."

"It is proposed that the existing EU free movement will be replaced by a new transition period version of EU freedom of movement, which will apply from the end of March 2019 until the end of December 2020. Similar provisions will apply to UK nationals residing in other member states," he said.

The MAC, which provides the UK government with independent advice on migration issues, has recommended that all migration to the UK be managed under the same system from 2021, with no preferential access for EEA citizens. It has recommended that the Tier 2 (General) immigration route be reformed to cover medium-skilled as well as high-skilled jobs; to abolish or increase the number of exemptions under the Resident Labour Market Test; and to abolish the annual cap on Tier 2 (General) migrants.

However, the MAC has also recommended retaining the £30,000 salary threshold it has recommended and retaining the Immigration Skills Charge, which would be extended to also cover EEA workers under its plans. It is not recommending the introduction of any sector-specific work-related schemes for lower-skilled workers, with the possible exception of a seasonal agricultural workers' scheme.

"Employers will be concerned that, from 2021, the complex and costly Tier 2 sponsorship scheme will replace the current straightforward and cost-free operation of free movement for skilled workers," said Euan Smith. "Indeed, employers eagerly await the publication of the immigration white paper, which they hope will address this crucial point later this month."

"For those employers who currently employ EU nationals in what are regarded as 'lower skilled' roles, the concern will be that the requirement for a minimum salary of £30,000 will mean the proposed reduction in the required skill level under Tier 2 will not help fill the expected vacancies in practice," he said.

A pilot of the 'settlement scheme', which the UK government intends to make available to EU citizens who have been living in the UK for five years before the end of the post-Brexit transition period, is currently underway, with the scheme due to be fully operational by 29 March 2019. Applicants for settled status will be asked to prove their identity and that they have been living in the UK for the past five years, and to declare that they have no serious criminal convictions.

EU citizens who have not yet met the five-year residence requirement by the end of the transition period will be able to apply for 'pre-settled status' in the UK. They will then be able to convert this to full settled status once they have been living in the UK for five years.

In a statement, the European Commission said that the provisions on citizens' rights in the draft withdrawal agreement would "[protect] the life choices of over three million EU citizens in the UK, and over one million UK nationals in EU countries, safeguarding their right to stay and ensuring that they can continue to contribute to their communities".