Lisa Bryson, Partner, Employment & Immigration at Eversheds Sutherland provides useful guidance on the Settlement Status Scheme and discusses the support that employers can provide for their workers who wish to remain.

We do have some certainty around Brexit.  The certainty we have relates to the ending of free movement of EU nationals to the UK (other than Irish citizens) after Brexit.   We know that there is a real lack of understanding, and huge levels of concern, among EU nationals resident in Northern Ireland about what the future holds for them.   We know that businesses here are worried about the grave adverse consequences of losing their EU national talent, and not being able to access the necessary talent in the future, and the impact this will have on their business and the wider economy in Northern Ireland.  We also know that the EU Settlement Scheme opened on 30 March 2019 and that 50,000 applications were made over the first weekend of opening.

What do we know about the EU Settlement Scheme?

The EU Settlement Scheme has been through a number of public testing phases and opened fully on 30 March 2019.  The Scheme is the means through which EU nationals (with the exception of Irish citizens) and their non-EU family members will be able to evidence their right to live, study and work in the UK after Brexit.

Over 230,000 applications were made during the testing phase with the majority of the applications being approved within 48 hours.  Our experience of supporting EU nationals through the testing phase is that the process is relatively straight-forward and simple to navigate.

Who is eligible to apply under the Scheme, and when should applications be made?

EU, EEA and Swiss nationals who are in the UK at Brexit date can make an application under the Scheme.  This means that individuals who have not yet set foot in the UK may still be able to apply if they arrive before Brexit, or the end of the transition period if there is a Brexit deal.    The table below sets out the key dates which will apply on Brexit in either a deal or a no-deal scenario.

What is the criteria?

Subject to identity and criminality checks, individuals who have five or more years continuous residence in the UK at the date of their application will be granted settled status.  Those with less than five years continuous residence at the date of their application will be granted pre-settled status, and can then can apply for full settled status once they have lived in the UK for five continuous years.

Identity is checked  via the ‘EU Exit: ID Document Check’ App on an Android device.

What immigration rules will apply after the end of the transition period, from 2021?

The final shape of the post-Brexit immigration system in the UK has yet to be confirmed.   The Government’s current thinking on this is set out in the White Paper which was published in December 2018.

The White Paper largely accepts the key recommendations of the Migration Advisory Committee with regard to EEA workers, but does commit to a lengthy period of engagement with stakeholders in relation to a number of areas all of which are of significant importance from a Northern Irish business perspective.  These are the general removal of access to lower-skilled workers other than through a limited 12 month visa with no dependant rights; the use of Tier 2 visa for skilled workers with a proposed minimum salary threshold of £30,000; and the content of Shortage Occupational List for Northern Ireland.

Does this mean that lower-skilled EEA nationals will not be able to come to the UK after Brexit?

No, the Government have put in place what the Home Office have referred to as a ‘bridging arrangement’.   EEA nationals who arrive in the UK after Brexit but before the new immigration regime is in place will be permitted to enter the UK for three months to visit, work and study.

For stays longer than three months a new visa called ‘European Temporary Leave to Remain’ will be required. The application for this status will be in the form of an online process where identity and criminal record are checked.  This leave will be valid for a maximum of three years.  EEA nationals who wish to stay at the end of this three year period will need to apply under the new rules that are expected to come into force in 2021.

What can be done to provide comfort and reassurance to the EU nationals living, studying and working in Northern Ireland?

The Government’s information campaign is now live with billboard, TV, radio and online advertisements.  This campaign should go some-way to demystifying the situation and reassuring our EU national colleagues, workers, neighbours and friends that they are an important and welcome part of our society.  In short it should help dispel the commonly held misconception among EU nationals that they will have to leave Northern Ireland on Brexit.

Can businesses and employers help?

Yes.  Business owners and leaders would also be well advised to talk to their employees to signpost them to the necessary information, to explain the position and provide such support as may be needed in relation to the Scheme.   If nothing else this may assist to stop the widely reported exodus of EU nationals from Northern Ireland, and the resulting talent shortage in certain sectors.  It would be a valuable time, and employee, investment strategy to provide some workforce and workplace certainty.    This support could take the form of a town hall meeting for all employees, training managers to be able to respond to questions, the provision of workshops or information webinars, or assisting with the facilitation of Scheme applications for EU nationals and their family members.

Looking further ahead to the likely shape of the immigration regime from 2021 onwards, it is critical that businesses in Northern Ireland, regardless of size or sector, actively participate in the Home Office engagements on the White Paper proposals.  This needs to be done to ensure that the new immigration system enables Northern Ireland to attract the skill and talent it needs to continue to support our economy.   This will entail the collation and provision of evidence to the Home Office around the shortage of available local talent to fill many of the jobs currently undertaken by EU nationals in Northern Ireland; the steps already taken by business to date to unlock some of the under-utilised pockets of local available talent within Northern Ireland (for example, mothers or individuals who have been on sick leave wanting to return to work); the fact that the £30,000 salary threshold for Tier 2 visas is too high for Northern Ireland; and the need for access to so-called lower-skilled workers in particular sectors.

There is an opportunity for the dials of the new immigration system to be set at the right level so that Northern Ireland businesses and communities are able to continue to thrive.  That said all interested stakeholders need to ensure that the concerns voiced are substantiated with evidence-based research.  Without this focus the future of the Northern Ireland economy which is so heavily reliant on foreign workplace talent is much less certain.

If this is an area of interest or concern for you, you may be interested in attending our half day event on 30th April 2019 - EU Nationals and Brexit: Retention and Recruitment Solutions.