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In a recent development on Brexit preparations the MPs and campaigners have expressed concerns over the fact that in an event of no deal Brexit there is a high risk of a repeat of the Windrush scandal.

The concerns stem from the fact that the Immigration Minister, Caroline Nokes, has confirmed to the MP’s that in case of no deal Brexit the European Nationals arriving to the UK will be treated in a manner no different from non-EEA nationals. This, in effect will mean that the employers will face a very difficult challenge in identifying whether their EEA hires are legally allowed to work or not, leading to possible discrimination allegations against the employers.

Current position

Currently, the EEA nationals have complete freedom to come and live in the UK, provided they exercise treaty rights. This means working, studying or being self-sufficient. This means they are legally allowed to be employed in the UK in the same manner as any British national or settled person.

The law requires the employers to carry out what is known as ‘right to work’ checks on all of their employees irrespective of the nationality. Failure to do so can result in significant penalty charges. Therefore the media has erroneously been reporting that the employers will have to carry out these checks in the event of a no-deal Brexit. These checks have to be carried out in any event, as the law requiring it has been in place for years and suffers no change as a result of Brexit. So, what will change? With change to status of EEA nationals, the right to work checks will also change.

Currently, for British and EEA nationals, the document proving their right to work is their national passport or ID. Practically, all an employer would have required from a British or an EEA national was their passport to carry out the ‘right to work’ check and safeguard themselves from possible penalties.

No deal scenario

The above situation will change with a no deal scenario.

In case of a no-deal scenario, the UK government’s current position is that after March 29th, 2019, the new arrivals from the EEA countries will have to meet the same immigration requirements as currently in place for non-EEA nationals.

This translates into requiring a visa to enter the country or remain here, as well as limited right to work. The situation is complicated by the fact that for those EEA nationals who have arrived before the date on which the UK departs from the European Union, the situation will be different. The UK has unilaterally undertaken to allow them to continue remaining in the UK and settle here. However, the system to register these EEA nationals will not be fully operational until after the UK departs from the EU in March 2019. This effectively means that come March 29th, there will be two categories of EEA nationals in the UK, those who are legally allowed to reside and work in the UK and those who are not. The problem is, they will be indistinguishable as there will be no documentation that can easily and readily prove which category they belong to. This is further complicated by the fact that by the UK government’s own initiative, the UK based EEA nationals will have until 2021 to register. Which means the above described situation will possibly continue for 2 years.

Burden for employers

The above, in essence, represents an added burden for employers. The Home Office is now confirming that there is no plan to offer any dispensation to employers for hiring illegal EEA migrants, if there is a no-deal Brexit that in effect generates such a category.

The employers will have no real way of carrying out ‘right to work’ checks. As the rules currently stand on ‘right to work’ there is a very specific list of documents that an employer can accept as evidence of right to work. Unless the list is expanded there will be no way a UK employer will be able to carry out satisfactory checks on EEA nationals. This will mean that the UK businesses will have to refuse hiring EEA nationals, leading to the possibility of facing discrimination claims.

Furthermore, as the EEA nationality ceases to be legal basis for right to work in the UK, the businesses will potentially face issues, even with existing employees. This is because the ‘right to work checks’ have a time limit. For those who have limited right to work, and EEA nationals will fall under that category in the event of no-deal Brexit, the right to work checks need to be carried out periodically not only upon hiring.

The above-mentioned scenario will translate into businesses having to make a decision to either let go their employees or face possibility of being fined by the Home Office.

What can be done

While it is still unclear whether the no-deal Brexit will come to pass, it is becoming a more likely scenario day by day. As no answers are forthcoming from the government, it is up to the business to try and prepare for Brexit, deal or no deal.

There are several ways that you can safeguard your business and your employees. One is to carry out an assessment of your human resources and to assess the impact of an EEA national staff in your business. Following that, you can look into securing a registration certificate or permanent residence for your EEA national employees. While the registration certificate and permanent residence will be replaced after Brexit by the new system, that will take the EEA nationals under the national Immigration system, having documents proving their right to be in the UK under EEA Regulations will make the process of exchanging these documents with the new ones more seamlessly. Furthermore, it will also offer a better defence to any possible penalties for hiring people without demonstrable right to work. Some of your employees might also qualify for British nationality, eliminating any risk all together.

There are also categories that qualify for participating in the early cycles of settled status applications.

It is important to keep in mind that the changes following Brexit affect not only the EEA nationals, but also their family members.

RVS solicitors is offering services to make your business #BrexiReady. We will help you carry out the relevant assessments and offer services of identifying solutions for your workforce.

Contact our specialist EEA/Brexit Solicitors in London

Contact us if you would like to discuss about getting your business #BrexitReady

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