Three top tips on what to do now to reassure EU employees
The Supreme Court has given the government permission to appeal the recent High Court decision that parliament must first legislate before Article 50 can be triggered and the negotiations for the UK to leave the EU can begin. The court’s decision on the appeal is expected in the New Year.
Unless the government’s appeal is successful, a bill would have to pass through the Commons and Lords. Both chambers would have an opportunity to shape the legislation and would probably force the government to reveal the terms it would accept on leaving the EU, long before its negotiators reached Brussels. Enshrining the Brexit terms in law may significantly weaken the UK’s negotiating position and decrease its bargaining power. This may mean less certainty about when the Brexit process will begin, despite prime minister Theresa May’s statement to the contrary.
Previously, the government had indicated that Article 50, starting the two-year process to leave the EU, would be triggered in March 2017. The current court action does not necessarily alter this timeline, but it does make it more challenging. The Liberal Democrats have already threatened to vote against triggering Article 50 unless the final Brexit deal is put to a further referendum. Labour party leader Jeremy Corbyn has indicated he would only vote in favour if access to the single market is guaranteed.
Given its small majority, there is a risk the government may not be able to pass a bill through parliament easily without concessions to the other political parties, and this may make the March 2017 deadline unachievable.
So, among all this confusion and uncertainty, what are companies doing to prepare for Brexit, given the potential loss of free movement of people and its impact on their workforces?
We recently conducted a benchmarking survey of our clients across a mixture of small and large businesses in a range of sectors, in order to assess their preparations for Brexit. Perhaps not surprisingly given the unknowns, 74 per cent did not yet have a plan for immigration post-Brexit, but those that were planning their immigration strategy were doing three things:
1) Looking at the European workforce
Interestingly, 80 per cent already had easy access to reliable data on who their European migrants were. This information allows organisations to assess who might be affected by Brexit, in order to communicate with them and, if necessary, explain with the use of statistics how they have used European migration and how it benefits the business.
Employers without reliable data could consider a ‘Bring your passport to work day’ for employees and collect the necessary information then.
2) Communicating with staff
This means offering reassurance and, in some cases, providing access to information on how to apply for EC residence cards, permanent residence or naturalisation as a British citizen. This could be handled using immigration ‘surgeries’ for staff or ‘town hall’ events, or by an introduction to legal advisers, or by using articles and published information packs.
3) Considering paying for Home Office applications
Only 16 per cent of organisations were offering to pay for their European employees’ applications to confirm their UK immigration status, but this figure reflects the fact that holding a residence card as a European migrant is not mandatory and could prove unnecessary.
This, of course, only considers the position of those already in the UK, and employers should be aware that they may well have to look at developing their immigration strategy if they want to hire European migrants once the UK leaves the EU.
In a post-referendum age, organisations are becoming accustomed to a more uncertain political landscape. The message to workforces should be one of calm. Until the UK leaves the EU (and even once Article 50 is triggered), free movement for citizens of countries that are part of the EU remains in place. The whole concept of free movement is itself a negotiating tool that will form part of the Brexit deal.
While the government has dropped strong hints that European migration in its current form is unlikely to continue, although European migrants already in the UK will be able to stay, no absolute guarantees have been provided. In essence, it is all up for grabs and, in the meantime, these three constructive steps will help put employers in a good position to deal with the challenges that lie ahead in a post-Brexit world.
Louise Haycock is a solicitor at immigration law firm Fragomen LLP
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