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What Brexit means for employers and the right to work

Written by
Jude Fletcher
Date of Publication:
22 February 2021

In simple terms, Brexit means that EU/EEA nationals are now treated the same way as non-EU/EEA nationals. This fact may, however, not be a lot of help to employers who have only ever recruited from the UK, EU and EEA. With that in mind, here is a quick guide to the new rules.

Right to work checks stay the same

You must confirm an employee's right to work before they officially start work for you. In other words, you have to have them completed by the employee's contractual starting date and time. This may be earlier than an employee's agreed starting time as employers often like to give existing staff a bit of breathing space before new hires arrive.

Per the current guidance, you do not have to conduct retrospective right-to-work checks on EU/EEA nationals. This is, however, very much a case of "watch this space". As the rules currently stand, an EU/EEA national could be refused settled status but carry on working just the same.

Realistically, there would probably be a limit to how long they could get away with this. For example, they'd be unable to move to another employer as this would trigger right-to-work checks. They could, however, certainly keep on working long beyond their legal entitlement.

It's free to apply to the EU Settlement Scheme

Despite the name, the EU Settlement Scheme applies to nationals of the EU, EEA and Switzerland. Eligible applicants will be given either pre-settled or settled status depending on how long they have been in the UK.

As a rule of thumb, any EU, EEA or Swiss national who arrived in the UK before 31st December 2020 will qualify for either of these statuses. If they have been resident in the UK for less than five consecutive years, they will be given pre-settled status. This allows them to remain in the UK for up to five years and then convert their status to settled if they wish.

If they have lived in the UK for at least five consecutive years, then they can obtain settled status immediately. In either case, they will retain the right to work. The deadline for initial applications is 30th June 2021. If an individual does not meet this deadline then, even if they qualify, they may be deported.

Employers can still sponsor international hires

It is still possible to hire internationally provided that you have a sponsor licence and can demonstrate that there is a justification for hiring the individual. The standard justification is that the employee has recognized, in-demand skills. There may also be opportunities to hire unskilled workers to fulfil particular needs e.g. harvesting crops.

Business visitors will probably need a visa

Technically, EU/EEA/Swiss nationals can visit the UK for up to 6 months without a visa. If they do, however, they are prohibited from undertaking paid work of any description. It's also worth noting that exercising this right frequently may cause immigration officials to become suspicious and lead them to deny entry to the individual.

It's, therefore, safest to assume that business visitors will require a 'visitor visa'. This allows them to undertake some business activities but not to be paid by the UK company. They can, however, accept reasonable expenses.