Brexit Q&A

Read Neil Carberry's full blog here for a complete summary of the Brexit deal. 

Four further points are of note for recruiters:

1. The section on data is, on balance, quite reassuring. It does not yet, however, contain the official confirmation that the EU sees the UK’s data protection regime as equivalent. My hope would be that this will be resolved – the text seems to anticipate it will be – but it is not time to stand down planning on data just yet.
2. Likewise, the sections on payments across borders are also clear and reassuring. While there will be work to do to get cross-border billing right, I anticipate this will be an area which can normalise quickly.
3. Perhaps the greatest single area where there has been no result of use yet is on the recognition of professional qualifications. This is a big problem – both for UK and EU staff working in other party, and for those seeking to supply cross-border. It needs urgent attention.
4. Finally, a word on visas. For international firms where people work for multiple weeks per year in different EU states, remember that you will have to measure that time and manage it to either avoid reaching the 90 day limit, or to give yourself clarity on which work visas you need to apply for, and for which staff. This is especially the case because the provisions for intra-corporate transfers in the FTA – transferring your own staff to your business in the EU – do not go as far as we would have liked.  

The Government has said in its 19 January 2020 Policy statement it plans a new post-Brexit ‘points-based immigration system’:

EU citizens living in the UK by 31 December 2020 are eligible to apply to the EU Settlement Scheme and will have until 30 June 2021 to make an application. As a transition measure, employers, landlords and public service providers will continue to accept the passports and national identity cards of EU citizens as evidence of permission during this period, up until 30 June 2021.

The current government guidance for employers states:

You’ll need to check a job applicant’s right to work in the same way as now until 30 June 2021. Until this date job applicants can prove their right to work in the following ways:

• EU, EEA or Swiss citizens can use their passport or national identity card
• non-EU, EEA or Swiss citizen family members can use an immigration status document listed in the right to work checks employer guide
• EU, EEA and Swiss citizens and their family members can use the online right to work checking service

So, during the grace period (1 January 2021 – 30 June 2021) in which EU citizens will be able to apply to the EU Settlement Scheme), employers will be able to continue to accept the above documents as evidence of right to work. Importantly, they will not be required to check whether EU citizens entered the UK after 31 December and are therefore not eligible to apply to the EU Settlement Scheme. In fact, making these checks during this time will be unlawful under the UK's withdrawal agreement with the EU.

EU citizens who enter the UK from 1 January 2021 will only be able to live and work in the UK if they already have pre-settled or settled status under the EU settlement scheme, or, they have indefinite leave to remain. If they don’t, they will need to apply for the right to live and work in the UK under the government’s new post-Brexit ‘points-based immigration system’.

EU citizens who are subjected to the new immigration system will be required to obtain employment sponsorship to work in the UK. This will mean that all UK employers who plan on employing an EU citizen will need to apply for and obtain a sponsor licence.

We are under the impression that, as an employment business, you won’t be able to sponsor workers. It is our view that the clients would have to have a license and sponsor the worker, which will then be employed by their sponsor. As it stands, there’s no route for self-employed and for low skilled workers, which means providing workers via their own limited companies might not be an option as well.

The government has launched new guidance for sponsors on 27 November and the new system is now live, from 1 December. Here you can find the guidance for employers. For more information on sponsoring a skilled worker (formerly known as tier 2), please follow this link, and the list of supporting documents can be found here.

As it stands, temporary workers (tier 5) would help to satisfy cultural, charitable, religious or international objectives, and for meeting seasonal employment needs in the agricultural sector (seasonal worker visa) and the Youth Mobility Scheme. There are specific criteria for sponsorship for those and the type of work carried out by those workers are also restricted. Please follow this link to find the guidance.

From a policy perspective, we’re aware this is really problematic for the industry and we are actively engaging with the Home Office and seeking clarity for our members on this grey area of law.

A temporary route was something we pushed for - but to date, it hasn’t been accepted by Government. Despite the rise in unemployment, we are still seeing many members reporting a mismatch between skills and labour in the country.

The only bit of comfort is that Points Based Systems typically changes and we’re calling for the system to be flexible to ensure that the needs of the economy are met.

We have said the new system must meet three key tests:

• It must be is flexible to meet the changing needs of the economy, not subject to political whim
• The Shortage Occupation List must be frequently reviewed by the Migration Advisory Committee and include jobs at all skill levels
• There need to be routes for SMEs to sponsor individuals from abroad.

Members are encouraged to contact us at policy@rec.uk.com to share case studies and concern on sectors who might suffer from skill shortage as a consequence of the changes.

Please note that immigration is a reserved area of law in which the REC cannot advise on. We have tried to provide some relevant information but we would recommend that you speak to an immigration lawyer if you have further questions.

Please check our Brexit Hub and our checklist to prepare for the end of the transition period which will help you access the changes you will have to implement for 2021.

From 1 January 2021, the UK will default to third-country status for EEA countries and this might affect how you travel, hire, establish a business, work on a regulated profession, transfer data, amongst other things, which might be different for each country. In the absence of a deal, the UK will trade with the relevant countries under WTO rules. The checklist will prompt you to ask the relevant questions and direct you to government guidance on those issues.

Other resources which might be useful are the webinars BEIS have prepared for different sectors and topics. These are on-demand so you can listen to at your convenience and, when you sign up, you will have access to the supporting materials that are also extremely helpful. I'd recommend the ones on Services and Investments; Providing Services in the EU and Professional Qualifications; Using Personal Data; and Business Travel which can be particularly relevant depending on the nature of your question.

On another note, the REC has a strong relationship with the Department for International Trade (DIT) who will join us on a webinar for members early next year. In the meantime, I am happy to put you in contact with a DIT advisor if you would like, just let me know.

The DIT helps UK companies to develop their international strategy in a number of ways. They offer free advice based upon a knowledge of the business environment locally, with commercial officers based in 160 offices in 110 countries around the world.  DIT can also help organisations to build a more formal plan via the Overseas Market Introduction Service, a chargeable service with more tailored support and use of facilities where needed. For more information on potential countries/markets you may be interested in exporting your services to and relevant contact info from embassies, sectors and events, please follow this link.

Brexit will affect recruitment businesses in many ways, from immigration and right to work checks to data flows, for example. We are urging members to prepare, as we are now less than 20 days from the end of the transition period and changes will happen, regardless if a deal is reached or not.

We have updated our Brexit checklist for members with references to official guidance and steps to be taken to prepare, I would suggest you have a look at that as a first step. The checklist is also included in our Brexit hub.

BEIS is also running a series of webinars with supporting documents, which are extremely helpful. You can watch the recorded sessions at your convenience. The one on services is quite informative for recruitment businesses.

Under the new system, all non-UK&I workers will be treated the same, regardless if they are from the EU or not.

What matters is the actual role in question. As it stands, under the new rules, there's no low-skill worker route, which means many jobs in the hospitality sector will be out of scope and will have to rely on the internal workforce.

However, under the new rules, the requirements for tier 2 (skilled worker) visas will be more flexible, with skilled workers being those with RQF3 (A-Level) and above, which means some occupations in the hospitality sector will fall in scope (please read more info about eligible positions here). Other requirements such as salary threshold and language proficiency will also need to be met to obtain the minimum points. If the position is on the SOL (Shortage Occupation List), a lower salary threshold will apply, which is currently the case for Chefs.

For the new system, what matters now is the position that's being recruited for, not where the worker is coming from. We have recently updated our Brexit checklist and there’s also a guide on immigration from Fragomen, both of which can be found in our Brexit Hub.

EU citizens and their family members who currently have a right to reside in and work in the UK will continue to do so until the end of the Brexit transition period – until 11 pm on 31 December 2020. Following that, EU citizens will need to apply to the new EU Settlement Scheme which has been introduced to protect the rights of EU citizens to remain and work in the UK once the transition period ends.

With some exceptions, EU citizens who have lived in the UK for 5 years or more will be able to apply for indefinite leave to remain (settled status). Those who have resided for less than 5 years will be able to apply for limited leave to remain (pre-settled status) which will allow them to stay on to reach the 5-year period to then apply for settled status. The deadline for applications under the EU Settlement Scheme is 30 June 2021. The EU citizen must have started living in the UK by 31 December 2020 to be eligible to apply.

Employers who currently employ EU nationals can encourage them to sign up to the EU Settlement Scheme. The Government’s EU Settlement Scheme guidance is really helpful as a starting point.

As for the seafarers from the EU, they will still be able to work on UK-flagged vessels after the end transition period. This is from the government website:

Trained seafarers in the EU, Norway, Iceland and Liechtenstein will still be able to work on UK-flagged vessels from 1 January 2021.

However, the UK is still seeking agreement from the EU for UK trained seafarers to work on EU-flagged Vessels. More information on hiring crew members for ships and yachts can be found here.

A frontier worker is an EU or Swiss citizen who is employed or self-employed in the UK but resident elsewhere. Frontier workers working in the UK on or before 31 December 2020 will still be able to enter the UK for work once free movement with the EU ends until 30 June 2021 using a valid passport or national ID card. After 1 July 2021, a valid frontier worker permit will be required.

Applications for Frontier Worker Permit are live from 10 December 2020 and guidance is available on the EU Settlement Scheme toolkit page.

The new system will treat EU and non-EU applicants in the same way. It won’t matter where the worker is coming from, but the position you are recruiting for and if the other criteria are also met (such as English proficiency, salary threshold etc). The Home Office has launched a new campaign and new guidance to promote readiness for the new points-based immigration system among UK employers, including a podcast.

All jobs have a corresponding Standard Occupational Classification (SOC) code which designates the skill level and if that job meets the requirements of the skilled worker route.

The full list of occupation codes allowed under the skilled worker route can be found in the July 2020 policy statement and is subject to change. The Migration Advisory Committee recently published its review of the Shortage Occupation List which will be used to update the list of occupations eligible for the skilled worker route under the immigration rules.

At present, there is no “low-skilled” route (below RQF3/A-Level), which includes LGV drivers.

The REC is raising concerns on members behalf as part of the Home Office Employers Immigration Advisory group. As soon as we have more detail we will update members.

Following the end of the transition period, Regulations to provide services remotely from the UK to the EEA might change. You will need to check this by sector and by the EEA country you want to trade with.

In the absence of a deal, the UK will default to third-country status and will trade under with the EU under WTO terms. This means the requirements can be different for each EU country so we advise you to read the official guidance above and seek specialist advice if needed.

If you operate a branch in the EU, you may need to comply with additional legislation which may be different for each country and can refer to:

• Accounting standards and reporting requirements
• Nationality and/or residency of senior managers or directors, and/or limits on the amount of equity that can be held by non-nationals
• Cross-border commercial and civil legal cases
• Intellectual property
• Changes to the VAT system

Further help and support on if your business trade with the EU info can be found here.

In our view, data flows are the biggest challenge REC's members will face in the event of a no-deal. We are advising members to map their data flows and consider steps to avoid disruption. We have also prepared a comprehensive Q&A on this specific topic which can be accessed here.

Currently the GDPR allows a free flow of personal data between European Economic Area (“EEA”) countries and the UK. However, in the event of a no deal Brexit, the UK will become a ‘third country’ for the purpose of personal data transfers between the EEA and the UK.

The UK has granted data adequacy to the EEA, which means that if a recruitment business processes personal data and transfers it abroad to an EEA country (or a country that has been deemed adequate by the European Commission) businesses can continue to do so even in a no deal Brexit.

However this is not a two way street. The European Commission have previously explained that they will not confirm an adequacy decision for the UK until after Brexit. This means that recruiters will be able to continue to transfer personal data to clients in the EEA (or another ‘adequate’ country) BUT recruiters will not be able to receive personal data from the EEA unless another international transfer provision of the GDPR is utilised.

In the interim, recruitment businesses that want to continue to receive personal data from clients in EEA countries after Brexit may want to consider putting into place “appropriate safeguards” such as using the European Commission’s Standard Contractual Clauses (SCCs) which the ICO have now adopted. In most cases, SCCs are likely to be the most suitable solution.

The REC also offers members a range of model documents and guides on data protection as well as additional resources.

Yes, EU nationals who entered the UK before the end of the transition period, that is, before 01 January 2021 will still be able to continue working and living in the UK. They will have the right to do so under the EU Settlement Scheme which is open for applications until 30 June 2021.

There won’t be any immediate changes in RTW and therefore, EU passports/ID will be sufficient for an individual to have RTW during the period between 1 January and 30 June 2021. Employers are not expected to check dates of arrival into the country or if individuals have settled status during this time. In fact, the Withdraw Agreement makes it illegal for employers to ask for proof of settle or pre-settle status.

Passports and IDs will remain valid as proof of RTW for EU Nationals until 1 July 2021, which means you won’t have to check when a candidate entered/worked in the UK. The Home Office is currently working on guidance for this grace period (1 January - 30 June 2021) as well as the new RTW requirements after that, and the REC is highly involved in that conversation. We will update this FAQ as soon as more information becomes available.

There won’t be any immediate changes in RTW and therefore, EU passports/ID will be sufficient for an individual to have RTW during the grace period, between 1 January and 30 June 2021 - while applications for the EU Settlement Scheme remain open. Employers are not expected to check dates of arrival into the country or if individuals have settled status during this time. In fact, the Withdraw Agreement makes it illegal for employers to ask for proof of settle or pre-settle status. The Home Office is aware that a minority of workers may exploit this, and be working illegally, but employers will not be liable for any illegal workers where they have conducted a RTW check in line with the guidance.

You cannot ask for proof of settled/pre-settle status before 1 July 2021. That would be a violation of the Withdraw Agreement. Until 1 July 2021, passports and IDs are sufficient proof of RTW for EU nationals. More guidance will soon be published on this.

What do I need to do about my workers who are currently working in other EU countries after the transition period ends? Will they still have a right to work in France for example?

Individuals already living in an EU country before the end of the transition period, that is, before 1 January 2021, you will have the right to continue to live in that country with broadly the same rights as before, subject to any additional requirements that EU countries insist on.

Here you can find more information about the rights of UK nationals to work and live in the EU.

The Withdrawal Agreement guarantees these citizens and their family members broadly the same rights as they have now: they can continue to live, study, work and travel freely between the UK and the EU.

The same applies to any EU citizen who moves to the UK or UK nationals who move to an EU Member State during the transition period.

As mentioned, To benefit from these rights, citizens may need to apply for a new residence status, according to each country’s decision to opt for a so-called constitutive or declaratory system.

Yes, even after the end of the transition period, Irish citizens will still be able to live and work in the UK without a visa. Under the Common Travel Area (CTA), which pre-dates Irish and UK membership of the EU and is not dependent on it, Irish and British citizens can move freely and reside in either jurisdiction and enjoy associated rights and entitlements. Despite of Brexit, both the Government of Ireland and the UK Government have committed to maintaining the CTA. You can find more information about this here.

The UK Internal Market Act has received Royal Assent to become law, ensuring businesses can continue to trade seamlessly across all 4 parts of the UK based on principles of mutual recognition and non-discrimination. From 1 January, powers on a wide range of issues flow from the EU to the devolved administrations in Holyrood, Cardiff Bay and Stormont for the first time, including employment law.

Government has confirmed that the EU-UK Trade and Cooperation Agreement contains a bridging mechanism that allows for the continued free flow of personal data from the EU/EEA to the UK. This system will be in place from after the transition period until adequacy decisions come into effect and for up to 6 months. Following this, EU adequacy decisions for the UK would then allow for the ongoing free flow of data from the EEA to the UK.

During this grace period, any data transfers from the EU/EEA to the UK can continue to be treated the same as they were before the end of the transition period. Although the grace period is initially four months, in the absence of any adequacy decision being issued by the EU, an automatic extension of an additional two months up to 1 July 2021 will be applied (unless the EU or the UK objects).

An adequacy decision would allow data to be transferred outside the EU without risk and extra compliance burdens for businesses.  We are still waiting for details of the adequacy decisions and hopefully the position will be confirmed before 1 July 2021. For now, the REC has no plans to change template contracts or polices. If we do need to make any changes later on, we will let you know.

If the UK is granted an adequacy decision, this will allow for the free flow of personal data between the EU and UK without having to safeguard against it. It is important to note that this applies only to data transfers from the EU/EEA into the UK. For data transfers going from the UK to the EU, the UK has already adopted most of the General Data Protection Regulations into domestic legislation, with the Data Protection Act 2018. The UK has already stated that it views the current position with the EU to be adequate, but this will be kept under review. We will update our members when we know more.
 

If you have EU nationals that registered with your agency before 31 December 2020 and you already have evidence of a compliant right to work check under Home Office’s guidelines, that is sufficient and you don’t need to repeat any checks. For new candidates that register with your agency from 1 January 2021 to 30 June 2021, you need to carry out right to work checks in the usual way and you should not ask them for proof of pre or settled status as an EU Passport or ID card will suffice.

By way of reminder, due to COVID 19, temporary changes on right to work checks were introduced:

Conducting a right to work check during the temporary COVID-19 measures

• ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
• arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
• record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
• if the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call - the applicant must give you permission to view their details. 

From 1 July 2021 new checks will be required for all new candidates that are recruited. A European passport or ID card alone will no longer be sufficient, except for Irish citizens. The candidate must have applied for settled or pre-settled status and have provided evidence of that. If they miss the deadline which is 30 June 2021, they will not have the right to work in the UK. These checks will need to be in line with the new Home Office guidance (not yet published).