Brexit employment immigration law implications. It’s been a long road since the UK’s June 23rd, 2016, referendum on Brexit, but Britain has finally canceled its more-than 40-year membership to the EU. But now that it’s finally happened, many employers are still trying to parse Brexit’s employment immigration law implications.
Previous guidance still holds true
Much of the guidance issued by experts prior to the start of 2021 still holds true. In many respects, Brexit has made it easier for employers to hire skilled migrant workers.
- There is no longer a cap on the number of immigrant skilled workers allowed into the UK,
- Businesses no longer have to advertise positions to UK citizens first before hiring skilled workers
- Immigrants can attain a skilled worker visa with just an A level (or Regulated Qualification Framework [RQF] level 3) rather than a bachelor’s degree (or RQF level 6).
Because of these changes, experts argued that employers should be proactive about attaining a sponsor license should they wish to hire EU or non-EU immigrants. It was believed that there would be a surge of sponsor license applications to the Home Office, but this hasn’t happened yet, likely due to the impact of COVID-19. Even though the Home Office isn’t being overwhelmed with sponsor license applications, it’s still very much a good idea to get a license early before it becomes a bottleneck in your organization’s hiring process.
Furthermore, some businesses may not realize that intra-company transfers also require a sponsor license. If you’ve established a presence in the European Economic Area (EEA; for brevity, we’ll refer to the EEA and Switzerland collectively as the EEA in this article) and intend to transfer an employee to the UK, you’ll need a sponsor license.
Alternatively, some EEA nationals may apply for the EU Settlement Scheme. Under this scheme, EEA nationals who have spent a total of 5 years in the EU prior to December 31, 2020, were permitted to stay. Otherwise, they can apply for “pre-settled” status, in which they must stay within the UK for 5 years and then apply for settled status.
Recent employment implications of Brexit immigration law
The Trade and Cooperation Agreement (TCA)
The most recent regulation on EU-UK relations is the Trade and Cooperation Agreement (TCA). The TCA was signed on Christmas Eve, December 24, 2020, serving as the agreement in principle that will govern trade relations between the UK and EU.
For the most part, this agreement doesn’t immediately affect any of the practical actions an employer should take if they’re considering hiring an immigrant. It does permit short-term business visitors to come to the UK without a visa for less than six months, though they can’t be employed in the UK and are limited in the types of activities they can undertake. The TCA also expands the worker categories permitted under the Tier 5 International Agreement Worker (IAW) route. However, neither of these changes impact employers seeking to hire an immigrant for long-term employment in the UK.
The TCA does, however, provide some clarity in how employment laws might evolve in the years to come. Specifically, the TCA stipulates that neither the UK nor the EU may reduce or weaken the level of employment rights in place as of December 31st, 2020, to such an extent that it would affect trade or investment.
The idea here is that this agreement ensures a level playing field between the UK and the EU, preventing one from undercutting the other with cheaper labor by reducing health and safety standards, fair working conditions, employment standards and so on.
If a disagreement should arise between the EU and the UK regarding unfair labor practices, the two parties would attempt to find a mutually agreeable solution. Failing that, the aggrieved party is permitted to implement tariffs to mitigate the effects of the unfair labor practice.
This limits the UK’s ability to craft employment legislation that significantly diverges from EU standards, but only to the extent that it impacts trade and investment. The exception to this is Northern Ireland, which is still subject to the European Court of Justice’s decisions in regard to the EU Equal Treatment Directives, a stipulation that was part of the January 2020 UK-EU Withdrawal Treaty.
The frontier route
An additional avenue created by the UK government on December 10, 2020, is the new frontier worker permit. Frontier workers are EU nationals that don’t reside within the UK (and thus aren’t eligible for the EU Settlement Scheme) but do regularly travel to the UK for work.
More specifically, they must be an EEA national who has been in the UK for less than 180 days in the last 12 months or an EEA national who returned to their home country at least once in the last 6 months or twice in the last 12. Thus, even if a frontier worker spends the majority of their time in the UK (i.e., more than 180 days per year), they can still qualify so long as they return to their home country at least twice a year. The Home Office has issued guidance clarifying the finer points of this new permit.
Keeping abreast of changing regulations regarding Brexit employment immigration law implications
One thing is certain: UK labor and immigration law is going to continue to evolve as the UK adapts to life outside of the EU. If you’re feeling overwhelmed with the immigration uncertainty in the UK, we can help.
Exigent’s team of over 120 immigration legal professionals regularly assist organizations overcome immigration hurdles to source the talent they need. Learn more about our services and how we can help you and your clients understand and thrive through the Brexit employment immigration law implications