Immigration and Brexit, Deal or No-Deal: What employers need to know

Louis MacWilliam, Immigration Expert at Blacks Solicitors, discusses how the outcome of the Withdrawal Agreement will impact employers in the UK.

Following the rubber-stamping of the Withdrawal Agreement on Sunday 25 November 2018, many employers might be questioning what will happen when Britain leaves the UK in four months’ time.

The good news is that employers now have relative certainty in respect of the position of EU nationals currently here and those who arrive up until December 2020.

More worrying for employers however, is how the UK’s long-term restrictive immigration policy is shaping up.


  1. The EU Settlement Scheme

If there is a deal

Under the terms of the Withdrawal Agreement, the free movement model is effectively maintained for those EU nationals and their family members currently here, as well as those who arrive up until the end of the transition period. The transition period is currently set to run from 29 March 2019 until 31 December 2020 but can be extended until the end of 2022 at the latest.

The major proviso is that all EU nationals and family members currently here, or arriving during the transition period, must register under the EU Settlement Scheme. The Scheme is due to open “later this year” and the deadline to register on the Scheme is 30 June 2021, although potentially later if the transition period is extended.

Those with five years’ residence qualify for ‘settled status’, which here means indefinite leave to remain (ILR). Those with fewer than five years register for ‘pre-settled’ status and can then register for settled status on accruing five years.

Unlike with normal ILR which is lost after more than two years’ absence from the UK, Settled Status is only lost after an excess of five years’ absence. The EU Settled Status Scheme also dispenses with the current requirement under EU law for the individual to be a worker, self-employed person, student or a self-sufficient person. Mere residence is sufficient.

Aside from this registration requirement, employers can be reassured that the EU Settlement Scheme is in many ways a liberal model.”

If there is no-deal

If there is no-deal, the Government has committed to proceeding with the EU Settlement Scheme regardless.  The Scheme has in fact already been piloted, with apparent success, in certain regions and sectors. Every indication is that the EU Settlement Scheme is here to stay.”

  1. The UK’s long-term immigration policy

As much as the EU Settlement Scheme appears to robustly protect the rights of EU nationals arriving up until 31 December 2020, employers reliant on EU labour might be alarmed to learn about how EU nationals arriving after this date will be treated.

The plan is for there to be no preferential treatment for EU nationals arriving after this date and employers may also be dismayed to know that a Sponsor Licence will generally be required when recruiting EU nationals who arrive after this date.

The employer bears the cost of: the Licence (£536/£1,476 for a small/large employer); a Certificate of Sponsorship for each migrant (£199); and the Immigration Skills Surcharge (£1,000 per year, per migrant).

To top it off, the sponsoring employer must have water-tight HR systems in place or risk having their licence revoked following an unannounced visit – a measure which would immediately terminate the employment of all sponsored employees.

Also of concern is the intention to maintain the minimum income requirement for sponsored workers of £30,000, thus restricting the available positions to higher paid jobs.

  1. Immigration and the ‘cliff-edge’ for EU nationals

The picture now emerging for employers is one of two distinct models for EU nationals depending on when they arrive in the UK.

Employers can continue to easily recruit up until 31 December 2020, subject to their employees complying with the EU Settlement Scheme. However this date is increasingly looking like the proverbial ‘cliff-edge’, as arrivals after this date must be high earners and will bear heavy costs for employers.