In these trying times of pandemics, you could be forgiven for thinking that the normal course of Government and business had all but ground to a halt, with our collective focus being on statistics of infection, hospitalisation and sadly, mortality. However, the business of Brexit and all that goes with it, did continue and at 11.00pm on 31st December 2020, in the most tumultuous year in living memory, the transition period following the UK’s exit from the EU, came to an end and with it, the free movement of EU citizens within the UK and UK citizens within the EU.
With seasonal migrant workers being of critical importance to the agricultural industry in Scotland, all employers in this area should be aware of the major changes that have now come into effect and we summarise the position below.
Our Head of Immigration, Paul Brown, and rural expert and Partner, Anne Chapman, detail the updates that employers of EU nationals and seasonal migrant workers need to know in this article.
We’ve set up a legal clinic to provide support to those with questions on immigration or other rural law matters. We’re available via phone, email or video call and your first 20 minute appointment will be free of charge. Contact Anne or Paul to book your slot. One of our experts will then guide you through your particular situation and what you need to do.
Initially, following the Brexit referendum, those EU citizens already in the UK were very concerned about their position and that of their families. This subsided as the Government introduced the EU Settlement Scheme (EUSS) to provide a way for them to remain in the UK and to continue to live, work and access all of the benefits that they had previously enjoyed pre-Brexit. The process has been designed to be simple and quick to use and as at the end of February 2021, 4.81 Million EU citizens have applied for and obtained Settled or Pre-Settled status. However, the hard deadline to apply for either of these is 30th June 2021 – time is of the essence for those that have not yet applied.
Settled status allows any EU citizen who has been here for more than 5 years to remain in the UK and in due course, should they choose, to apply for citizenship shortly thereafter. Any EU citizen with less than 5 years’ residency in the UK prior to 31st December 2021 will be able to apply for Pre–Settled status which will likewise give them the right to remain in the UK. Once they have accumulated 5 years’ residency, they can transfer that to Settled status and thus receive the additional protection available.
Importantly, any existing seasonal agricultural workers from the EU who lived here before 1st January 2021, are entitled to apply for pre-settled status as there is no minimum threshold for time spent living and working in the UK.
Despite the number of EU citizens who have already obtained Settled or Pre-Settled status, a significant number have not or are not aware of the opportunity or need to apply for this status. The Government’s deadline leaves only a few weeks in which to apply and if not, the right will be lost. Employers should be reminding employees of the need to apply for this if they wish to do so. That said, a note of caution: the reminder should be issued to all staff, not only those whom the employer knows or believes may be non UK nationals, to avoid any allegation of discrimination.
While the focus has been on Covid 19 and even on the Brexit deal with the EU, the long trailed “points based” immigration system, finally came into effect on 1st December. From that date, a new skills focussed immigration regime became effective.
The primary focus of the new scheme is to allow those with appropriate skills to work in the UK. Put simply, the higher the level of skills and education, as well as the higher level of income, the better your chances of getting a visa.
For many seasonal agricultural workers, the above criteria would not be met. To combat this, the UK government extended the Seasonal Workers Pilot which will now see up to 30,000 overseas workers being able to come to the UK this year to work in the soft fruits and vegetable sector. The scheme allows workers, sourced through one of four designated labour recruitment companies (Pilot Operators), to come to the UK for up to 6 months, although there is frustration in the sector that the extended scheme has not yet been fully implemented and may not be sufficient to meet the industry’s needs.
The Seasonal Workers Pilot sits separately to the points based immigration programme. Whereas, all employers seeking to employ overseas nationals under that points based immigration system require to have a licence from the United Kingdom Visa & Immigration Office (UKVI), to be able to issue Certificates of Sponsorship (COS) for a prospective employee, under the Seasonal Workers Pilot scheme, individual employers will not be able to recruit workers themselves but instead the Pilot Operators will do so and obtain the necessary visas. Employers will then engage these workers via these Pilot Operators. However, if you have previously employed EU workers and wish them to work for you again, as long as they have obtained settled or pre-settled status, you can do so without the need for a visa or any intermediary arrangement from one of the Pilot Operators.
Employers who only employ EU Nationals have not previously required a licence to issue Certificates of Sponsorship but as of 1st January 2021 these businesses must now obtain them. Now is the time to apply for such a licence if you need to but if you only require seasonal labour under the new pilot scheme, you should not need an individual licence.
The combination of Brexit, immigration and seasonal workers is a challenging one but with the right advice, employers in the agricultural sector can be guided through this difficult area.
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