Until the EU Referendum last June, workers from European Union member states, along with citizens from Iceland, Norway, Liechtenstein, and Switzerland, enjoyed the right of free movement to live and work in the UK. Hiring staff from these countries has to-date presented no problems for British employers, while the absence of immigration requirements has made it easy for EU citizens to settle in the UK.
EU Citizens in the UK
Statistics show that the contribution of the 3 million or so EU nationals who have made their long-term home here outweigh the costs to the UK. According to the Confederation of British Industry (CBI), 2/3 of members view the ability to recruit and transfer staff from other EU countries as positive for business, helping to plug the skills gap in the UK.
From doctors, nurses, and support staff in the NHS to large parts of the hospitality and catering industries, EU workers play a large part in the UK economy, making up 3.6% of the overall UK workforce. Large-scale staff operations require high levels of HR management, making shift and rota planning tools such as Planday an everyday necessity.
An Uncertain Future
Of course, the UK’s democratic decision to leave the European Union has thus far not affected the immigration status of EU citizens, so in theory nothing has changed. However, in terms of outlook towards a post-Brexit future, everything has changed.
What, if any, alternative free movement rights may be negotiated as part of the Brexit deal? Will EU nationals living and working here lose their right to stay once Brexit is finalized? The government has to-date resolutely refused to safeguard the status of EU nationals residing in the UK, and they voted down the Lords’ amendment to the Brexit Bill.
At present, the limbo situation between the decision to leave the EU and the UK’s actual departure (likely to take place no later than Spring 2019) leaves plenty to be uncertain about. While free movement applies for the time being, the only thing that’s certain is that immigration rights for EU citizens are unlikely to remain in their current form.
How Can Employers Respond?
This uncertainty is a significant driver for staffing decisions that UK businesses are now contemplating going forward. In certain cases, it may cause employers to want to avoid employing EU nationals, simply because of the potential risk of losing them in a couple of years’ time, when immigration rules will change.
The danger with this approach is that it could be unlawful and that discrimination claims may well be brought. While refusing to hire a person who does not have the right to work in this country is perfectly legal, a refusal to hire on the grounds that the right to work may be withdrawn at some point in the future is unlikely to stand up in a Tribunal. A policy of not hiring EU nationals would most likely be regarded as discrimination on grounds of nationality, which is enshrined in both UK and EU law.
Hiring EU Staff with Brexit in Mind
A better approach would be to insist on only hiring workers who can prove that they have an Indefinite Leave to Remain (ILR) and work in the UK, or a Document Certifying Permanent Residence (DCPR) in the case of EU nationals. While this may be viewed as “indirect discrimination,” it can be justified by an employer if it is needed to achieve a legitimate aim – which would need to consist of something more substantial than mere fear of uncertainty regarding staff immigration status post-Brexit.
Another recommendation would be to include a conditional clause in all employment contracts that the employee must have and maintain the right to work in the UK in their current role. In this way, if it becomes necessary to terminate the employment contract as a result of immigration changes after Brexit, there shouldn’t be any problems.
What can EU Citizens Do?
It is no wonder that EU citizens in the UK are now, through no fault of their own, finding themselves in a precarious situation as a result of the UK’s vote to leave the EU. Many are facing up to the reality of an uncertain future in their adoptive country, along with the feeling that they are no longer welcome or valued in the UK.
Certainty in terms of immigration status can only be ensured with evidence of ILR granted by the Home Office, or if they have obtained a DCPR after 5 qualifying years of exercising Treaty rights. As many EU nationals are now finding out, simply having lived in Britain for 5 years is not enough, and even marriage to a British citizen has no bearing on the application.