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Employment Law

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Veale Wasborough Vizards , 29 JUN 2016

Brexit and employing EEA nationals - what next for employers and education providers

Brexit and employing EEA nationals - what next for employers and education providers
Judith Hockin
Associate, Veale Wasbrough Vizards

Following the decision made by the UK to leave the EU on 24 June 2016, what does this mean to employers and education providers in the short term?

Very little may change - at least at first - while the UK starts the process of leaving the EU. The exit process will take at least two years.

The referendum result gives rise to a significant number of questions for employers:

  • Should employers employing EEA workers who have had free movement rights be concerned?
  • What will be the UK government's likely approach to EEA migrants?
  • Will EEA migrants in the UK continue to have the same free movement rights as part of any agreement with the EU, perhaps in a similar way to EEA nationals from Iceland, Liechtenstein and Norway? Or will EEA migrants be subject to UK immigration law in the same way as non-EEA nationals currently are?
  • Will EEA nationals currently in the UK be required to regularise their immigration position in the UK and, if so, by when?
It is likely that a lot of these questions will not be clarified until the approach to whether the UK remains within the European single market or negotiates separate trade agreements is resolved.

In the event that EEA migrants are treated in the same way as non-EEA migrants, employers will have to apply to become Tier 2 sponsors in order to sponsor all migrant employees. Under Tier 2, employers can only employ workers if there is no resident worker in the UK to be employed in that job and if the job level is high (at least degree level). Employers will have to pay an appropriate salary which is currently fixed at at least £20,800 per annum. Low-skilled workers will not qualify.

No doubt there will be transitional arrangements, but it may mean a great number of immigration applications which the Home Office will be required to deal with. For the time being, employers will want to reassure their overseas workers and recruits that it is business as usual so far as that is possible.

There is potentially an impact also on those who study in the UK. There are many EU pupils in schools in the UK and students studying at UK universities. What will that mean for them? Only independent schools can currently sponsor non-EEA pupils under the Tier 4 (Child) route. This means, in effect, that non-EEA children aged under 16 cannot obtain a Tier 4 visa to study at any other type of institution. In the future, will the referendum result mean that EEA pupils will only be able to study at independent schools who are Tier 4 sponsor licence holders, as Tier 4 (Child) students? Similarly, university students from the EEA may eventually have to regularise their status under immigration law by having to apply as Tier 4 (General) students.

At present this is speculation, but employers need to be aware of possible changes if they employ EEA employees. Also, those independent schools with Tier 4 sponsor licences may find they have a sudden increase in pupils applying for places from the EEA. Both employers and education providers should ensure they are compliant with their obligations as sponsor licence holders. If they have any doubt about compliance, they should seek advice and guidance sooner rather than later. We will keep employers and education providers updated as and when the immigration position becomes clearer.
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