A guide for EU-based employers with staff in the UK

From January 2021, the free movement of workers arrangement with the EU will terminate and the UK will introduce a new points-based immigration system, which will apply to all non-UK individuals. EU citizens resident in the UK before 1 Janaury 2021 will have the right to remain and continue to work in the UK, if they apply to the EU Settlement Scheme before 30 June 2021. However, EU citizens arriving in the UK from 1 January 2021 onwards will be subject to new immigration controls in the same way, and to the same degree, as other non-EU nationalities.

EU businesses with UK operations should therefore consider their talent and mobility requirements and be prepared for restricted rights to work, changes to rules on business travel and social security regarding their UK operations.

UK immigration arrangements after Brexit

While Blick Rothenberg doesn’t provide immigration and work permit services – though we can direct clients to lawyers in this regard, if required – the below provides a high-level summary of the work permit and visa issues that clients could face from 1 January 2021 onwards:

• Short business trips to the UK – e.g. to attend a trade fair or for training or to gather information for their job overseas – should continue to be available to EU nationals on a ‘visa-free’ basis
• Irish Nationals will continue to be able to live, work and study in the UK on a ‘visa-free’ basis, as the UK will retain a common travel area with the Republic of Ireland from January 2021 despite Brexit
• Other EU (and EEA/Swiss nationals), will, however, from 1 January 2021 require a work permit to undertake meaningful work duties in the UK (though some exceptions may be available in particular situations – e.g. for seasonal agricultural workers)
• UK-based employers are legally obliged to undertake ‘right to work’ checks on their workers. When assessing the position of EU (or EEA / Swiss Nationals) who are already in the UK before 31 December 2020, UK employers are able to continue to depend simply on the employee’s passport (or National ID card) until 30 June 2021. When making checks on such employees from 1 July 2021, employers will need to use the formal pre-settled or settled status confirmation that the Home Office will be issuing to such individuals under the terms of the Withdrawal Agreement.
• UK-based employers may need to obtain a sponsorship licence if they wish to employ a skilled non-UK worker. Once the employer is an approved sponsor, a work visa can be obtained for a skilled worker, if a number of requirements are met, including a salary threshold.

Some key facts for EU employers with UK Operations to consider

1. Ensure that EU workers in the UK have complied with the applicable UK immigration registration and legal requirements (settled and pre-settled status).
2. Inform your business units that setting people to the UK from 1 January 2021 will be vastly different regarding the personal and corporate risk, permitted activities and operational resilience, speed to deployment and cost. For example, the UK immigration cost will increase for EU arrivals from £0 to £9,500 for a five-year work visa and lead times will change.
3. Consider that EU businesses requiring to employ or second EU nationals (or other foreign employees) in the UK, may need to establish a formal presence in the UK before they can register with the UK Home Office (Interior Ministry) as an employer for work permit applications and sponsorship licences.
4. Identify those mobile employees among your current assignee population who are currently living and working in the UK, their nationalities and home countries, and that any A1 certificates extensions into 2021 are in place before 31 December 2020.
5. EU businesses should continually review ongoing developments on social security cooperation between the UK and EU – it is possible that if there is no longer term agreement between the UK and the EU (or individual EU members), that workers from the EU to the UK could become liable to ‘double social security liabilities’ in due course.
6. Strategic workforce and business planning, including:

• Undertake a workforce risk analysis identifying any key personnel or material numbers of employees, who may pose a flight risk if they will no longer prefer to work in the UK (or no longer find the UK an attractive location because of Brexit);
• Can you encourage existing employees to stay in the UK where possible – e.g. by assisting employees with the registration processes;
• Can you consider alternative workforce models (e.g. do you need to use more UK-based contract staff instead of workers posted from the EU?);
• Consider whether you should consider advancing the posting of staff internationally, so that they commence working in the other jurisdiction before 31/12/20;
• Is it appropriate to set up a branch or subsidiary company in the UK?

How Blick Rothenberg can help

• Reviewing workforce planning to improve where and how employees are deployed;
• Brexit-proofing ‘work anywhere’ policies and the issues associated with global remote workers;
• Assessing the viability of travel and effective use of business travel;
• Helping you understand the Social Security landscape and consider planning opportunities to minimize or avoid double social security liabilities;
• Training your HR and business units re the new obligations that arise, to minimise corporate risks and encourage compliance.

Would you like to know more?

If you would like to learn more about how Brexit may impact you, please visit our Practical Guidance: Brexit hub here.

And if you have any questions or would like to discuss your specific circumstances, please get in touch with your usual Blick Rothenberg contact or one of the partners on this page.