Government triggers Article 50 – implications for your workforce
With today’s triggering of Article 50 of the Lisbon Treaty, Theresa May has formally begun the two year countdown to the UK exiting the European Union (EU). The consequences of this so-called “Brexit” remain uncertain, as negotiations over the terms of the UK’s formal exit in 2019 will only now commence. What is clear, however, is that Britain’s exit from the EU will have significant implications for your EU workforce.
What happens now Article 50 has been triggered?
Throughout the exit process, the UK will remain a full member of the EU, meaning that we will still be required to comply with EU law, including all employment legislation derived from EU law, and freedom of movement will be maintained for EEA nationals. Regardless of the progress of the negotiations and any ”deal” that Britain secures from the other EU members over exit terms, nothing is likely to change for EU nationals living and working in the UK during the 2 year negotiation period.
The position after Brexit
To a large extent, the future of employment and immigration rights in the UK will depend upon the terms of the exit arrangements negotiated with EU member states over the next two years. In relation to employment law, nothing is likely to change in the short term. The government has indicated that it has no desire to overhaul UK employment law and, even if it wished to do so, amending or repealing the various pieces of legislation would take some time to achieve. It is in the area of immigration that the impact is likely to be felt most quickly. Once the UK exits the EU, the rights of EEA and Swiss nationals to live and work in the UK will almost certainly change. One likely option is that the current points-based immigration system will be extended to EEA and Swiss nationals, although it is possible that the Government may look into flexible bilateral immigration treaties with other countries to facilitate immigration and help to plug any “skills gap”. There are currently no guarantees regarding those EEA and Swiss nationals who are already working in the UK, and it is the status of these workers that will be causing the most uncertainty for UK employers. It is to be hoped that the status of these workers will be treated as a priority in the forthcoming negotiations, as the Government’s stated policy is that it is also keen to secure the rights of those UK citizens who live and work in other EU member states.
EU nationals who have been in the UK for 5 years or more have the right to apply for permanent residency in the UK. Once such immigration status is granted, such individuals will be free to live and work in the UK without restriction. Employers should encourage and support their overseas workers to make such applications, and to do so as soon as possible, given the likely demand as the exit date approaches. Employees should be aware, however, that there is administrative time and cost involved in making such an application.
What should employers do now
- Ensure that any existing sponsorship systems (enabling recruitment of non EEA nationals) and sponsor licences are robust and that sponsorship duties are being complied with, such as booking an immigration compliance audit to “stress test” your systems.
- Put contingency plans in place to enable you to scale up your sponsorship systems in the event that the points-based immigration system is extended to non-EEA nationals
- Apply for a sponsorship licence if you do not hold one already • Assist qualifying EEA nationals to apply for permanent residency in the UK
- Review and put in place measures over the next two years as negotiations progress and exit arrangements become clearer
Capsticks will of course continue to monitor the situation and issue updates as the impact on immigration and other employment-related rights become clearer. We would also refer you to the resources and guidance on NHS Employers’ website which can be found here. In the meantime, for further information on how this issue might affect your organisation, please contact Martin Hamilton, Rachael Heenan or Jacqui Atkinson.