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Global HR Lawyers

Brexit is coming for your workers, industry by industry

26 May 2017

Brexit means Brexit the saying goes. The UK’s divorce from the EU, and subsequently reviewed immigration system, is a key general election issue.

Both of the main parties have confirmed that European freedom of movement will end with Brexit, while the Conservatives have committed to bring annual net migration down to below 100,000. Labour has been fairly light on immigration detail but, particularly if we have a Conservative government in two weeks’ time, it is clear that the Migration Advisory Committee (MAC) will be tasked with cutting net migration. They will need to recommend how to best do this with minimal impact to the economy and the hint is that the system will be targeted by industry and skill set. Which means that it’s time for you to start preparing for battle.

Well, not battle so much as debate, persuasion and problem solving. The policy makers have problems galore and need solutions. If you and your industry representatives can present solutions - that are politically sellable and supported by data – you can help determine how the new immigration system works and, therefore, what your future workforce will look like.

Evidence-based advocacy

We know the MAC are economists and they will be driven by economic arguments. Data supporting your advocacy initiatives should therefore evidence that foreign workers, be they European or otherwise, are business-critical, are creating jobs for local workers and driving the British economy.

For example, the Creative Industries Federation reported that the creative industry, which includes advertising and marketing, is the UK’s fastest growing economic sector. They call it “Brand Britain” but international mobility has been crucial to its success. Freedom of movement and business from the UK into Europe, has allowed various British talents to begin their global exportation, establishing acts and individuals as international, at a lower cost than first foraying into more expensive global markets. Further, EU nationals account for at least 6.1% of the creative industry’s workforce in the UK. Many of these jobs may not be eligible for sponsorship under the skilled work visa route in the near future, which could present significant issues for businesses going forward.

To retain access to foreign skills, the MAC will need to see that existing skills pipelines in the UK have been exhausted. This might mean you literally sitting at job centres trying to attract the British unemployed, inviting school excursions to generate interest and advertising at university careers fares. The MAC will also need hard evidence of the damage to the British economy that would be caused if your business and industry isn’t able to hire the foreign workers that it needs. Will the business need to move abroad? Will you need to lay off local workers who no longer have crucial global business leads or specialist technical leads to guide them?

Systems and compliance concerns

The next wave of European migrants will not have access to free movement as we know it and won’t be able to get Permanent Residence as easily as those before them. It is very probable they will be brought in line with other visa categories, and be required to speak English to a given level as well as demonstrating an income above a certain level. Accordingly, Europeans in the UK will need documentation to easily identify which rights apply to whom. Whilst there are some ways to help ease this burden, it is still a logistical nightmare for the Home Office and an administrative and costs burden for the applicants and their employers.

But, just as the migrants will be categorised, so too will the employers. As foreign workers become a rarer commodity, employers are going to have to jump through more hoops to get them. Only the trusted need apply and only those who will pay for them will get them. There is already a sponsorship system which is likely to be expanded and that means surprise audits to check you are compliant. Compliance means ticking every box, building trust and demonstrating robust systems in line with the many (and I do mean many) requirements and responsibilities placed on employers.

Because the Government doesn’t have the resources to enforce all the rules themselves, they are increasingly delegating responsibilities to employers with extreme penalties for non-compliance. Penalties such as losing your sponsor licence and ability to sponsor skilled workers, to fines starting at £20,000 per illegal worker, all the way to an unlimited fine and up to five years imprisonment. So don’t miss that tiny bit of writing on page 132 of the 207 page guidance (not including the seven appendixes). Oh and don’t forget the Rules which are kept separately. Or the multiple sections of Rules not necessarily referred to where you might expect them to be and all of which interrelate and change with little warning at least three times a year. It might not be rocket science but it is incredibly complex and pernickety and oh so easy to make a fatal mistake.

Affirmative action

Employers who want the best out of a new system which is already peeking above the horizon must lobby for it now and gain the requisite trust to be eligible for whatever special privileges will be issued. That means ensuring you are 100% compliant and that you are prepared, organised and able to make your voice heard.

We are starting to see this in action. Employers that were holding off on making applications to document European employees are now coming out publically to state they are supporting their employees to submit their applications by bulk. It provides a level of security to both employees and employers and most importantly, puts you practically ahead of the curve, saving administrative hassle when the second even bigger rush of applications begins.

Of course, predicting the election outcome could be another of those polls that have been so famously wrong recently. The Lib Dems might win and reverse the referendum. Unless they do though, immigration policy is most likely to roll out largely as iterated in the Conservative manifesto and the potential impact of not preparing now is profound. If you are not already a sponsor, if you’ve had an illegal working penalty notice or you don’t have your compliant right to work checks implemented for all existing workers, you are likely to be left behind and be one of the many employers who will have their foreign worker allowance cut. No migrants for you.

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