17 September 2018
Two and half years after the Brexit referendum, we are only six months away from the date when the UK will formally leave the European Union. Any transition period is dependent on a deal being reached with the EU.
European Economic Area (EEA) nationals still retain the right to live and work in the UK at the moment and the Government continues to reassure this group that they, therefore, do not need to make applications to preserve their right to remain in the UK.
However, with many news reports of worker shortages in sectors which rely on EEA nationals, is this the best approach for both EEA nationals and you as their employers?
Many sectors are reporting recruitment concerns, but this might be best demonstrated in the building industry. Recent data has shown that 28% of London construction workers hail from the EU. With EU net migration at its lowest level since 2012, and a sharp decrease in the number of EEA nationals coming to the UK to look for work, concerns about limited access to these workers following Brexit raise question marks about how targets on housebuilding and infrastructure projects will be met. This is exacerbated because over half of UK nationals working in this industry are aged over 45.
Construction is not the only industry which is being affected. The hospitality sector, which typically operates on tight margins, also employs a significant number of EEA nationals – with up to half of the workforce in some restaurants and hotels coming from Europe. Restricted access to EEA national staff could lead to an increased wage bill as companies need to increase their salaries to attract workers in a squeezed market.
EEA nationals who want certainty of their immigration status after March 2019 currently have three options:
Applications for a registration certificate or DCPR are in most cases made online at a cost of £65 per person. Applicants can use the European Passport Return Service allowing them to retain their passports during processing. Decisions are currently taking around one month.
Under current Home Office proposals (which remain subject to the outcome of the ongoing Brexit negotiations) all EEA nationals who are in the UK now or who come to the UK before 31 December 2020 will be required to apply for settled or pre-settled worker status.
This application will need to be submitted between March 2019 and June 2021. This requirement will apply regardless of how long the EEA national has spent in the UK and what their personal circumstances are.
The Home Office has devised a simple online process (being trialled by students and NHS workers in Liverpool) which will rely on web-based forms and uploaded documents. Submission of original documents will only be required if the genuineness of the documentation is in doubt. Applicants who hold a National Insurance Number should have their eligibility checked through their tax records with HMRC, simplifying the application process.
The application will continue to cost £65 for adults (as is the case for DCPR applications now) or £32.50 for children.
So long as an applicant meets the eligibility and suitability criteria, the Home Office says it will only refuse the application if it contains a misrepresentation or submits false documents for review. Even where this appears to be the situation, a case worker will decide whether this is material to the decision and whether it is proportionate to refuse the application. This suggests that in the vast majority of cases, applications will be approved.
Current holders of a DCPR will be able to switch to the settled worker status for free if their DCPR was issued in the previous ten years and they have not been absent from the UK for more than five years. The Home Office has stated that this process will be very simple. This concession is more flexible than the current two years permitted absence and will give reassurance to those who already hold a DCPR.
Whilst the Home Office reassures us that the new settlement system will be straightforward and easy to operate, there are around 3.5 million EEA nationals in the UK who will all need to apply for permission to remain during the transition period: around 15 applications being approved every working minute.
In reality, many EEA nationals will not take steps to apply for their status until the end of the transition period putting more pressure on the cash strapped Home Office.
It remains to be seen whether the newly-designed processing system will be able to cope with this volume of applications.
Eligible EEA nationals, who have already lived in the UK for more than five years, and particularly those who wish to apply for British citizenship, may prefer to apply for a DCPR now. For applicants who have worked in the UK for more than five years the application is particularly straightforward.
The current one month processing time for DCPR applications may well slow down significantly in the future.
by multiple authors