Why you'll need legal advice on employing migrants post-Brexit
On June 26, Theresa May outlined her proposal on the rights of EU citizens currently living in the UK, after Brexit. The position paper relating to this proposal opens with several high level policy statements, including that:
"The UK is one of the most tolerant and welcoming places in the world and will remain that way. EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation".
The position paper sets out that until the UK withdraws from the EU, EU law will continue to apply and so the rights of EU citizens and their family members to live and work in the UK remain unchanged.
However, it is said that after leaving the EU, the UK will no longer be subject to EU law - free movement rights will come to an end and therefore cannot be carried forward into the post-Brexit UK legal regime.
From that point on, the position paper suggests all EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK's exit, need to obtain an immigration status in UK law, which they will need to make an application for.
It is no secret that following Brexit, the UK government may wish to introduce controls which limit the ability of EU citizens (and their families) who arrive in the UK to live and work here. It is fairly obvious that immigration and EU free movement concerns were one of the main drivers influencing many who voted in favour of leaving the EU.
However, if you are in business, there may be many reasons why you would seek to, or even need to, employ a person from overseas, particularly in the globalised economy in which we all now live. This could be for any number of purposes, including:
• for a job requiring specialist skill (for example, technical or language skills) that is not available in the local labour market;
• to fill vacancies for jobs in a designated 'shortage occupation'. This has been applied to nursing care in recent years in Northern Ireland, and there have been a number of visas granted to overseas nurses;
• to facilitate secondments or transfers from an overseas branch of the same company. US and other foreign companies operating in Northern Ireland will be familiar in particular with seeking overseas staff for this purpose;
• to fill temporary vacancies requiring a pre-existing skill set, or to fill unskilled or low-skilled vacancies due to labour shortages.
After Brexit, the talk is that free movement for EU/EEA and Swiss nationals will end and that the UK will move entirely to a points-based system of immigration control.
The UK already operates a points-based system for migrants coming to the UK from outside of the EU/EEA.
This has been in place since 2008.
Under this present points-based system, there are five tiers:
Tier 1: Highly-skilled individuals, entrepreneurs and high net-worth individuals.
Tier 2: Skilled workers in a shortage occupation who have a job offer.
Tier 3: Low skilled workers for temporary labour shortages (although this tier has never been used because of the strong labour supply from EU/EEA countries).
Tier 4: Students.
Tier 5: Youth mobility and temporary workers: people allowed to work in the UK for a limited period of time to satisfy primarily non-economic objectives.
As its name implies, migrant workers are required to score a certain number of points under the system in order to obtain permission to enter, or remain, in the UK and the points criteria differ for each tier.
Post-Brexit, it is likely that the vast majority of EU/EEA nationals who wish to come to work in the UK, would fall within Tiers 2-5 of the points-based system.
Thus it will be important for any business who might wish to employ such individuals, post-Brexit, to realise that they may require to apply for a licence to employ them, from the UK Home Office, as such employees will likely require sponsorship by the employer. At present, only employers registered with and licensed by the Home Office are permitted to issue Certificates of Sponsorship (CoS) to a named individual, who must then apply for permission to enter the UK.
The employer must have undertaken a strict verification exercise in order to issue a CoS.
Therefore, going into the post-Brexit landscape, all businesses who may wish or have need to employ migrant workers from within the EU (or even outside of it, if they are seeking to do so for the first time) would be best advised to seek legal advice from a skilled immigration law adviser, about what licence might be required.
Worthingtons can offer such a service to all business clients.
Brian Moss is a solicitor in the litigation department and can be contacted on 028 9043 4015