Employers Guide to Brexit

from Silk Helix
Photograph of Jenefer Livings, Founder of Silk Helix Ltd
14 December 2020
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The UK left the EU on 31 January 2020 with a transition period until 31 December 2020. It is unlikely that there will be an immediate change to employment law as current workers rights under EU law will become subject to Parliament’s control over domestic employment law after the transition period. The 1 January 2021 will see the end of free movement, impacting individuals living and working in the UK.

EU Settlement Scheme for EEA Nationals

On 1 January 2021 a new immigration system comes into force for EU nationals. In addition the UK has reached separation agreements with Iceland, Norway, Liechtenstein and Switzerland that will protect the rights of the nationals of those countries in the UK and vice versa. In practice this means that nationals of Iceland, Norway, Liechtenstein and Switzerland can use the EU settlement scheme in the same way as nationals from the 27 EU member states.

It should be noted that the new scheme does not apply to Irish nationals who are covered by the Ireland Act 1949 providing automatic settled status to Irish nationals.

All EU nationals residing in the UK by 11pm on 31 December 2020 must apply for settled or pre-settled status under the scheme by 30 June 2021. Settled status will be granted to those who have resided in the UK for 5 years and allows settlement indefinitely, settlement will however be lost by 5 consecutive years absence from the UK. Those who have not been resident in the UK for 5 years can apply for pre-settled status which will convert to settled status after 5 years residence. Pre-settled status will be lost by 2 consecutive years absence from the UK, however periods of absence lasting 6 months in any 12 month period may also impact settled status.

Application for settled or pre-settled status is the responsibility of the employee and cannot be completed by the employer. Employers should be providing employees with information about the scheme and encouraging them to apply, including providing any support required.

Right to Work Checks

There is no change to the required right to work checks until 30 June 2021. Employers are not required to carry out new right to work checks on existing employees and can rely on existing right to work checks.

Employers may check individuals’ status under the EU settlement scheme. They can use the employers’ online service for EU, EEA and Swiss citizens and their family members, provided that the individual obtains a “share code” under the service and provides this to the employer.

There is currently no guidance around those arriving after 1 January 2021 or guidance as to the implications to individuals or employers if the scheme is not applied for by 30 June 2021.

Employers are reminded they must not discriminate in requesting right to work checks and should equally apply right to work checks to all.

Business Travel

With free movement no longer applying, employees travelling for work will be subject to the immigration policy of the destination country. Those travelling into the UK for work may, depending on the type of work, require a visa. Employers should restrict activities to allowable business activities such as attending a meeting or conference as EEA business travellers after the 1 January 2021 will not be able to carry out productive work without appropriate visas.

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Article last updated: 14 December 2020

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