Charity

In the lead up to Brexit, employers (including charities) across the UK are considering what the implications will be of the end of freedom of movement, and what the new immigration rules will look like after Brexit.

What impact will these changes have for the charity and third sectors?

While it was estimated by the Institute of Public Policy Research in April 2018 that EU nationals only make up a relatively small proportion of the charity workforce, the reliance on the EU labour market will of course vary by geography and sector. It is estimated that social work, residential care and education will be impacted more than other parts of the charity sector due to the higher numbers of EU nationals working in those areas.

That same report said that 62% of charities had no experience of using the visa system for recruiting non-EU nationals. So it is likely that many charities will have to get up to speed with the new immigration system over the course of the next 12 months or so before it becomes fully operational on 1 January 2021.

Key changes

We outline below some of the key issues that the charity and third sectors need to consider in light of the immigration changes relating to Brexit.

Retention of current staff who are EEA and Swiss citizens and their family members

Existing staff already in the UK will need to apply under the settlement scheme before 31 December 2020 (or June 2021 in the event of a deal) or their status will become unlawful.

Employers should be encouraging staff to apply early and they may want to offer support such as workshops for staff on the settlement scheme or access to information to ensure that staff apply well in advance of the deadline. However, employers should be cautious about providing employees ‘advice’ in relation to their immigration status. Immigration advice is strictly regulated, and therefore cannot be provided by anyone who isn’t a solicitor or regulated immigration advisor.

To date, 2 million EU citizens have already applied under the scheme so good progress is being made. However, leaving applications to the last minute is not to be advised – especially as there may be a flood of applications as the deadline approaches which could lead to a backlog and longer processing times.

EEA and Swiss Citizens must be resident in the UK by 31 December 2020 in order to be eligible to apply under the settlement scheme if there is a ‘deal’ Brexit. If there is a ‘no deal’ Brexit, the cut-off date for eligibility to apply will be 31 January 2020 (subject to any change to that date).

Those who can apply under the settlement scheme should in most cases be eligible for settled status which is a type of indefinite leave to remain once they have 5 years continuous residence. Therefore, for existing staff who are eligible for the scheme, they should be able to live in the UK in the longer term (provided that they meet the criteria).  Employers will be able to plan on that basis.

Any EEA and Swiss citizens entering the UK after the date of a no-deal Brexit will not be eligible for the settlement scheme and they will have to apply for some sort of temporary visa to work in the UK after 31 December 2020 instead.

Recruitment when EEA and Swiss citizens will not have free movement rights

At present, employers have access to the whole of the EEA when it comes to filling jobs and there is no need to apply for a visa or to pay any costs when recruiting an EEA citizen.

In the future, to replace access to the EU labour market employers will have to consider alternative visa routes if they cannot access the staff they need to from the UK labour market. Some EEA and Swiss citizens (and their family members), moving to the UK after a no-deal Brexit date, may be eligible for the new Euro TLR visa route which the Government is planning to introduce.

This visa will be available on a temporary basis for employees who come to the UK before 31 December 2020. It should cushion the blow for some employers who struggle to recruit as there will be a temporary visa available for some EEA and Swiss citizens for a period of 3 years. However, those staff will need to be sponsored at the end of their visa if they are to stay in the UK in the longer term.  Employers will also need to know that the visa is for a temporary 3 year period at the point when they make a decision to recruit that person. If the employer is not in a position to sponsor the person at the end of that visa, then that may result in the employment coming to an end at that point.

If there is a ‘deal’ Brexit, the Euro TLR scheme will not be available. Instead, EEA and Swiss citizens and their family members can still come to the UK up to 31 December 2020 and can apply through the settlement scheme.  Employers recruiting these employees can be fairly confident that these staff will be able to stay in the UK in the longer term as most will be eligible for settled status once they have 5 years residence in the UK.

From 1 January 2021, anyone coming to the UK (whether there is a deal or no-deal Brexit) will need to apply through the new single skills based immigration system.

New single skills based immigration system from 1 January 2021

When planning future recruitment, employers in the charity sector will need to consider the eligibility criteria and costs of the single skills based immigration system which will open from 1 January 2021. This new system will apply following Brexit, whether there is a deal or no-deal Brexit.

Employers will want to consider the extent to which it can be used to replace the flow of EU workers to fill skills gaps / recruitment shortages. Many employers will want to consider what proportion of their workforce is comprised of EU citizens and what sorts of jobs they are doing.

A sponsor licence would be required to sponsor staff under this new system so some employers may want to apply now so that they can sponsor certain staff if they need to.  The visa costs for sponsorship can be significant and may be prohibitive for some roles. While some of the government charges to sponsor someone under the points-based immigration system are discounted for the charity sector, the averages are still several thousand pounds (and more in many cases once the various fees for any dependants are added together).

One of the issues, which charities and other third sector bodies will be interested in, will be the minimum salary levels which will apply when the new single skills based immigration system comes into place on 1 January 2021. Only medium and highly skilled jobs are likely to be eligible for sponsorship and minimum salary levels will apply.

The consultation process, which is considering what the new system should look like following Brexit, has been on-going for some time. The Migration Advisory Committee (the expert body which advises the Government on immigration policy matters) had issued a call for evidence asking employers across the UK to respond with their views on what the minimum salary level should be for roles to be eligible for sponsorship. It had initially proposed that the minimum should be £30,000 but the Government did not immediately accept that. That call for evidence closed on 5 November 2019 and the outcome should be known in January 2020. Some of the issues being considered are whether there should be regional variations or different rules for jobs which are of high public value but not high wages. For the charity sector, the minimum salary level may become critical as there are few visa options available for lower paid / lower skilled jobs.

In conclusion

Regardless of whether we have a deal or no-deal Brexit, employers for all sectors should be mindful of the changes which are likely to take place and do their best to prepare for the inevitable change to the recruitment of EEA and Swiss nationals in the future.

Elaine McIlroy

Partner at Brodies LLP
Elaine is a partner in Brodies employment team and she also heads the firm’s Immigration offering. She is dual qualified having worked in the City for several years and she acts for employers across the UK. Elaine advises employers on the whole spectrum of employment law issues but has a special focus on TUPE and strategic advisory work. On the immigration side, Elaine provides advice in relation to illegal working and civil penalties, business visitors, the points based immigration system and spousal/ partner visas, ILR and citizenship applications.
Elaine McIlroy