With the ongoing delay and uncertainty surrounding Brexit, it’s tempting to put Brexit workplace planning to one side. However, there are practical steps employers can take now to safeguard employees affected by Brexit. Failing to act could lead to losing key staff or employing illegal workers further down the line.

With the tech sector particularly reliant on employing overseas nationals, early consideration is even more crucial.

All European nationals must apply under the new EU Settlement scheme

The key message is that, regardless of whether there is a deal or not, all EEA nationals (other than Irish and dual UK/European nationals) must act to secure their long-term right to stay here.

§  What happens if a deal is agreed?

If the deal is agreed, free movement for EEA nationals continues until 31 December 2020. Any EEA national residing in the UK by then may stay here long-term provided they apply for settled or pre-settled status under the EU Settlement scheme by 30 June 2021.

Anyone residing in the UK for less than 5 continuous years must first apply for pre-settled status.  After residing in the UK for the 5-year period, they must then apply for settled status.

§  What happens if no deal is agreed?

If we leave the EU without a deal, EEA nationals residing in the UK on the date we actually leave (Brexit date) can remain but must apply for settled or pre-settled status by 31 December 2020.

In the event of a no-deal, any EEA national coming to live in the UK after Brexit date but before 1 January 2021 would not need a visa but may only remain for 3 months.

To remain longer, they must apply for temporary European leave, valid for 3 years. They would either need to leave the UK after 3 years or apply under the immigration rules at the time.

EU Settlement scheme eligibility and process

Individuals should be eligible for pre-settled status if they have been residing in the UK for less than 5 years.  Those who have been resident in the UK for 5 years should be eligible for settled status.

It’s an online application process entailing a brief online form and the uploading of any documents required.

In most cases applicants will not need to provide documentation to prove their residency in the UK.  They’ll provide their National Insurance number and automated checks will be carried out to confirm residency.

As part of the application process, proof of identity is required and individuals will need to either use the ID Document check App (only available for Android devices), send their passports in by post or attend an appointment to have their ID document uploaded.

Future immigration landscape

More significant changes for employers will come into effect from 1 January 2021 when EEA nationals will no longer have preferential access to the labour market.

Deal or no deal, from 1 January 2021, EEA nationals arriving for the first time to live here will be treated in the same way as other overseas nationals – they will need to qualify under the new immigration rules.

It’s likely many employers will need to rely more on Tier 2 sponsorship for future hires from Europe and elsewhere.

Although the majority of roles filled by non-UK nationals in the tech sector are highly skilled roles and so should qualify for sponsorship, employers will still need to consider the additional resources required.

The costs are hefty - current application fees to sponsor an individual under Tier 2 (for 5 years) are around £5,000 to £8,500 (depending on the size of the sponsor company).

Furthermore, instead of simply arriving at the border with their current passport or ID card, European nationals and their employers will need to factor in additional time to obtain work visas before arriving here.

Currently employers can offer a role to a European national in the same way as they can to a UK national. However, looking ahead, they will need to consider whether that European national has, or could apply for, the right to work in the UK.

Practically, employers should also be checking that employment contracts issued now ensure that the employment is subject to the right to work in the UK.

Priority action points for employers

Businesses should consider taking action now, including:

§  Carry out a full audit of your current workforce to identify those affected by Brexit. Often overlooked are the family members of European nationals – for example a US national working in the UK as the family member of a European national

§  Look out for updated guidance on immigration issues as the deadlines mentioned above may change following delays to Brexit

§  Raise awareness in the workforce about the need to apply under the EU Settlement scheme by the deadline – there is a helpful EU Settlement scheme Toolkit online

§  Determine what level of support to provide. Many employers are offering practical support and resources to their employees to guide them through the process (e.g. immigration workshops or briefing notes)

§  Undertake full right to work checks on all employees shortly before the relevant deadline (30 June 2021 if there is a deal and 31 December 2020 if there is no deal) to ensure they still have the right to work in the UK

§  If the business does not already hold a Tier 2 sponsor licence, consider applying for one. This would then enable you to sponsor both EEA and non-EEA nationals in the future. If the business already holds a sponsor licence, take steps to ensure compliance with sponsor obligations. The Home Office is cracking down on non-compliant sponsors and suspending or revoking licences; and

§  Urgently consider your talent pipeline – any EEA nationals/family members you wish to transfer to the UK would be best to come sooner rather than later, especially if there is a no-deal Brexit.

The forthcoming changes to the UK immigration system could be challenging for the tech sector to navigate. The risks can be mitigated however by businesses taking the time now to prepare for what is ahead.

Jackie Penlington is Senior Associate at Stevens & Bolton LLP.