Businesses that employ staff from the EU or elsewhere in the EEA need to consider how a no deal Brexit could affect them. We’ve taken a look at the issues you might face and provided tips on how to minimise disruption for you and your employees.
Will we still be able to employ EU nationals after the 31 December 2020 (end of the transition period)?
Yes, but only if they have the right to work in the UK either under the EU Settlement Scheme or general UK immigration laws. After the end of the transition period on 31 December 2020 freedom of movement for EEA nationals will stop. EEA nationals wanting to move to and work in the UK from 1 January 2021 will then be subject to the same immigration laws as non-EEA nationals.
The EU Settlement Scheme is open to citizens of the EU, Norway, Iceland, Lichtenstein and Switzerland (referred to as “EEA nationals/citizens”) and their family members who live in the UK before the end of the transition period. The scheme allows eligible people to obtain the UK immigration status they will need to live, work and study in the UK after the transition period (i.e. from 1 January 2021 onwards).
- An EEA national or their family member who have been living in the UK for a continuous period of five years (not having been absent from the UK for more than 180 days in any of those five years) can apply for settled status.
- If an EEA national has been living in the UK for less than five years, they should apply for pre-settled status. Once the individual has the required five-year residence, they can apply for settled status. The EEA national must make this application before their pre-settled status expires.
- The deadline for applying is 30 June 2021, but the employee must have started living in the UK by 11pm on 31 December 2020. The employee may bring a close family member (e.g. spouse or civil partner) to the UK after 31 December 2020 if the relationship with them began before 31 December 2020.
- An employee will have to leave the UK if no application has been made either under the EU Settlement Scheme or the new UK Immigration Rules by the deadline.
- The employee’s status, once granted, is linked to the passport or national identity card that was used to apply for the scheme. The employee won’t get a physical document to confirm their settled or pre-settled status. Employers will have to use the online Right to Work Check tool to check an employee’s status (https://www.gov.uk/view-right-to-work). Right to work checks continue in the same way as now (passports or national identity cards) until 30 June 2021 for EU citizens. An employer will not need to make retrospective checks for existing employees. If you’re looking to recruit EU employees on or after 1 January 2021, you should also check whether they have EUSS status or have been living in the UK before 31 December 2020.
EEA nationals who want to work in the UK for the first time after 31 December 2020 can only do so under the general UK immigration rules that will apply from 1 January 2020. Under the current proposals the new system will be a points based system (PBS). An employer must have a sponsorship licence to bring people into the UK under the PBS.
- Skilled workers may get a visa if they have a job offer from an approved employer, have the required skills level, are able to speak English and be paid the relevant salary threshold. This will be either the general threshold of £26,500 or the going rate for the position (whichever is the higher). Individuals who earn no less than £20,480 a year may be able to trade points on specific characteristics against the salary. The immigration rules will be updated to expand the list of occupations that will be eligible for the skilled worker route. There will be no cap on sponsored skilled workers and no requirement to complete a resident labour market test before sponsoring a migrant worker.
- The Global Talent Scheme will open to EU nationals from 1 January 2021. This will allow highly skilled workers to come to the UK without a job offer if they’re endorsed by a recognised UK body, approved by the Home Office.
- The intra-company transfer route will allow multinational organisations to facilitate temporary moves into the UK for key personnel through subsidiary branches. Intra-company transfer sponsorship requirements will have to be met, the applicants have to be in roles at graduate level equivalent and are subject to a different minimum threshold from the main skilled worker route.
- Low skilled workers: Under the new PBS it will not be possible to bring low skilled EEA national workers into the UK, not even temporarily, apart from under the seasonal agricultural workers’ scheme.
From 1 January 2021 an employer will have to pay the Immigration Skills Charge also when sponsoring EU migrant workers. The immigration Skills Charge is £1,000 per skilled worker for the first 12 months, with an additional charge of £500 for each subsequent six-month period. Discounted rates will apply to charities and small businesses (£364 per year and £182 for each subsequent 6-month period)
When making a visa application, EU nationals also have to pay the Immigration Health Surcharge which is £625 per year.
- Make sure all current EEA national employees already in the UK have applied/will apply for settled status before the deadline (30 June 2021)
- Consider starting employment with new EEA national employees (in particular if they are low skilled employees) before 11pm on 31 December 2020 so that they can apply for pre-settled status and do not fall under the new immigration rules
- Apply for a sponsorship licence as soon as possible this year to beat the surge next year
- Speak to your legal representative and work out strategies that best suit your business needs
Will we still be able to send personal data of employees to the EEA after Brexit?
The UK Government has confirmed that after the end of the transition period, businesses can still send personal data from the UK to organisations in the EEA without any extra formalities. The position will be the same as the pre-Brexit position, although the UK Government will keep this under review.
Will we still be able to get personal data of employees sent from the EEA into the UK after Brexit?
This is a more complex issue than exporting UK personal data to the EEA. After the end of the transition period, the UK will be outside the EEA. Unless the UK and EU reach a deal, EEA countries will treat the UK as a ‘third country’ for data transfer purposes, with the UK in the same situation as the US, for example.
For personal data to be sent from the EEA to the UK, the UK will either need an adequacy decision (like for Japan, Argentina, Israel etc) or businesses will need to put additional safeguards in place. It is therefore vital that businesses work with their EU supply chain to understand where such safeguards may be needed to maintain the free flow of data.
Option 1: Adequacy Decision
The UK is seeking an adequacy decision to take effect at the beginning of the transition period. Adequacy decisions normally take around three years, so this is unlikely to happen in time. There’s an argument that, since the UK has had GDPR in place since 2018, an adequacy decision should be a formality and expedited, but there’s no indication that this will be the case.
Option 2: Binding Corporate Rules or Standard Contractual Clauses
The alternative to adequacy is for a business to put in place other safeguards, such as Binding Corporate Rules (where the transfer is between group companies) or standard contractual clauses:
- The relevant regulator has to approve Binding Corporate Rules, which can take months, or even years to complete. If Binding Corporate Rules are not already in place, then any new application will not be finalised before the end of the transition period.
- Standard contractual clauses (SCCs) are a set of export clauses in a standard form contract approved by the Commission which the businesses sending and receiving personal data put in place. Prior to mid-July 2020, businesses often put these clauses in place without considering whether the legal system of the country that they were sending data to suitably protected the personal data. Since the decision of the European Court of Justice in July, in addition to putting the clauses in place, organisations need to undertake an assessment of the legal system of the country they are sending personal data to.
Option 3: Derogations
•There is also the possibility of using derogations to the EU GDPR. This allows the transfer of personal data outside the EEA where, for example, the individual has given explicit consent or it is necessary to transfer the personal data to fulfil a contract with the individual (e.g. where a French family books a hotel room in London). These derogations are better suited to specific situations where the transfer of personal data is occasional, rather than an ongoing export of personal data.
The most likely option that a UK business will use to get EEA personal data into the UK will be the standard contractual clauses. While they are standard, there are some details (e.g. the personal data concerned, and the use being made of it etc.) that need to be filled in. You should not leave this to the last minute, not least as they now need to be accompanied by a risk assessment of the protection afforded to personal data by the UK legal system.
Something often overlooked in relation to the import of personal data from the EEA is that the rules apply to companies in the same group, as well as companies outside the group. If you have a centralised HR function in the UK used by group companies in France or Germany, then these rules will apply.
Can we receive personal data of employees from EEA countries?
After the end of the Implementation Period (the Implementation Period is the period 31 January 2020 to 31 December 2020) there will be the UK GDPR. This is almost identical to the EU GDPR. Businesses established in the UK will be subject to it together with some businesses outside the UK.
The EU GDPR may continue to apply to UK businesses. If the UK business still has an establishment in the EU then the EU GDPR will apply. The EU GDPR also has extra-territorial effect and so if a UK business continues to sell goods/services to individuals in the EEA or monitors their behaviour then they will be subject to the EU GDPR as well as the UK GDPR. Monitoring is a broad concept and includes dropping cookies and using them to profile customers in the EEA.
A UK business could therefore be subject to both the UK GDPR and the EU GDPR.
Regardless of whether you’re subject to the UK GDPR or the EU GDPR, your obligations will be almost identical. Any GDPR readiness project and associated documentation will still be relevant (subject to some fairly minor changes set out below).
Is there anything else to think about in relation to data protection and employees?
Businesses that will be subject to the EU GDPR will need to update their privacy notices to pick up the representative and data export issues. Any references to EU law in privacy notices or other GDPR documentation need to also be updated. Article 30 registers will need to be thought about and if you are caught by EU GDPR, you may need to look again at your legal basis to process data as “compliance with law” can only apply to EU law, or the laws of a member state under EU GDPR. This should be thought about sooner rather than later.
Depending on the nature of your business, it may be important to make key employees (whose jobs deal with personal data transfers) aware of the changes through regular updates and/or training sessions. You may find the ICO's website and FAQs helpful.
Our business immigration section has more information on how we can help you with issues related to employing EEA nationals.