Brexit and immigration: Steps to consider now

By Ian Robinson, an immigration law partner at Fragomen Worldwide.  In this guest blog, Ian discusses what Brexit will mean for immigration and how he is advising his clients.

The UK’s exit from the European Union will have any number of implications for human resource teams across the country. Immigration is only one consideration but it is a reasonably big one, particularly with EU employees concerned about whether they will be told to leave the country.

Understandably, clients have had many questions at both a practical and legal level. The clearest way to respond to them, especially while everything is still so uncertain, are through the following four actions.

1. Reassuring your employees

It isn’t clear whether EU nationals will be told to leave the UK when separation happens and neither is it clear whether British people in the EU will need to come home.

This is what I would advise:

• It is unlikely that the government will tell EU nationals to go home but there can be no guarantees as yet.

• We do know that Mark Sedwill, the Permanent Secretary in charge at the Home Office, has said that those with permanent residence rights should be allowed to stay.

• EU nationals can normally apply for a Permanent Residence Card (PRC) after they’ve lived in the UK for 5 years, so long as they meet certain criteria — for instance a clean criminal record. There is no legal obligation to apply for the PRC and the vast majority of EU nationals don’t bother. However, my experience is that many are finding a lot of comfort in holding one since the referendum.

• EU nationals can also apply for British citizenship if they have a PRC, although they normally need to have lived here for 6 years. They also need to be of good character and meet a number of other relatively straightforward requirements. Again, this is not mandatory but could help people feel more secure.

What can HR professionals do with this information? You can hold one-to-one briefings with (normally very senior) staff, explain it in intranet postings or hold webcasts, employee roadshows, surgeries or town hall meetings. The point is to proactively make the information available to everyone, rather than waiting for queue to form outside your door.

2. Assume free movement will end

We don’t know if it will, but it seems unlikely that having lost the referendum on immigration, the government would continue to offer EU nationals unfettered access to the UK and our labour market.

If free movement does end:

• New people entering the UK to work will probably need a visa or sponsorship to prove their ability to work.

• People already living here will need some sort of document to evidence their lawful status, possibly through a new registration system.

• Employers will probably need to know that their employees have evidence of this for all EU employees, just as they do under current right-to-work law.

3. Know who your EU employees are

All of this will become clear in time, but for now the trick is to do as much as can be done to be ready for it.

I have been advising clients to pull data on their EU workers. Chances are that at some point, it will be necessary to check that they have the right to work. Otherwise, if a registration scheme is adopted, how will you know who will need to be registered?

It will also be advisable to know what roles they are doing. At the moment, the immigration system is calibrated to degree level jobs. If free movement goes, then you’ll want to know which are the jobs you are filling with EU nationals to help plan your workforce. This raises a number of questions, some of which are fundamental:

• Which roles will be recruited for locally and what (if any) training or other infrastructure would be needed to develop British workers?

• Which roles will continue to need filling from overseas?

• Are these roles on the government’s list of degree level jobs that qualify for visas?

• Will there be a need to convince the government to change its policy to allow those workers in?

4. Do not trust your data

You may think it is too early to run reports on your EU workforce, especially if you have a reasonable turnover of staff. But despite this, now is the right time to audit your records.

In the weeks since the Brexit vote I have been struck by how many companies struggle to pull data on EU nationals from their systems. The biggest issue it seems, is that their databases use British as a default nationality. It is changed for non-EU nationals but often forgotten for European employees. The result? Firms don’t know who their EU workforce is.

I would recommend a thorough system check. This might not be an issue – your system may be spot on — but I would sooner find out now than after the Home Office hurriedly rushes out any new policy.

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