As we move closer to Brexit the reality of the UK’s departure from the EU is starting to become a little clearer. In this article Julie Moktadir of Stone King considers the impact on faith-based charities within the UK.
One of the key questions is what will happen to EEA nationals in the UK when the UK leaves the EEA. For many faith-based charities, members of Congregations move freely between European countries. Stone King represents one client who is an EEA national, originally from Portugal. This Portuguese national has been in the UK for over 30 years, originally coming to the UK with Indefinite Leave to Remain. However, her stay in the UK has been interspersed with periods of time in Rome, and therefore breaking her stay of continuous period of residence. This Portuguese national would therefore have lost her Indefinite Leave to Remain. As a result, the client has been relying on her free movement rights as allowed within the European Union. With Brexit looming, this client must protect her right to stay in the UK, as any further periods spent in Rome may prevent her return to the UK.
- Transitional arrangements
The transitional arrangements have been agreed for how EEA nationals will be treated once the UK exits the European Union. This transitional scheme will run from 29 March 2019 until 31 December 2020. There will be two types of status: Settled Status and Pre-settled Status.
From 1 July 2021 all EU nationals must hold one of these two statuses. The transitional scheme is already open for those with a current passport wishing to get confirmation of their status in the UK. Those relying on ID cards will have to wait until 30 March 2019, when the scheme officially opens.
Settled Status will allow those EU nationals who have lived in the UK for five or more years to obtain confirmation of their settled right in the UK. EU nationals will need to take three steps:
- prove their identity,
- prove they live in the UK, and
- disclose they have no ‘serious criminal convictions’.
The Home Office will pro-actively liaise with other Government departments to check on employment and benefit records and, importantly, will be looking for reasons to grant and not refuse settled or pre-settled status. This means that, in most cases, EU nationals will not have to do anything to prove their residence except provide their national insurance number to enable this ‘real time check’ on residence to be conducted.
For individuals who have no footprint with the government, such as non-workers, evidence will need to be provided to prove residence, similar to that already required for permanent residence applications. A non-exhaustive list containing a range of documents that can be used to prove this, such as bank statements, will be published by the Home Office as a source of guidance. This will be particularly important for faith organisations with volunteers.
It is free to make an application for either status under the scheme. This follows the Government’s recent decision to scrap the £65 fee, making it accessible for everyone.
Many EU nationals will recognise that this status is very similar to that of Permanent Residence. For those EU nationals who already have confirmation of their permanent residence, they will just need to swap this for settled status.
One important difference between the decision to grant settled status and pre-settled status to that of granting permanent residence is the basis on which a decision is made. Currently, in order to live in the UK legally, you must be a ‘qualified person’ which includes a job-seeker, a worker, a self-employed person, a self-sufficient person or a student. Under the transitional arrangements however, the Home Office will not be looking for this exercise of treaty rights, but simply that of residence.
Pre-Settled Status will be granted to those EU nationals who have not yet completed five years in the UK. After completion of five years, settled status can be applied for.
Under the continuous residence requirement, applicants must have been in the UK for at least six months in each of the past five years. There is, however, an allowance for one period of up to 12 months out of the UK for an important reason. Examples of such reasons have been provided and include serious illness or an overseas work posting. It could also include, for example, a member of a Congregation travelling to Rome. The Home Office has given assurances that this will be decided on a case-by-case basis.
It is important to note that family members will also be eligible for both statuses. Non-EU family members can also apply under the scheme and will need to make an individual application.
The settled or pre-settled status will be issued in the form of a digital record, linked to the EU national’s identity document. Further identity documents, such as a new passport, can be added to their record by logging into the online system.
No onus will be placed on faith-based organisations and other employers to communicate any information to EU national employees. A toolkit for employers has, however, been created containing ready made correspondence and other products to enable information to be passed easily to EU nationals within an organisation. There is, however, a requirement on all employers to check the status of all EU staff within the organisation from 2021.
What is clear is that due to the significant development of the scheme and the resources already in place, these transitional arrangements will stay in place whether a deal is reached with the EU or not. It is therefore necessary to consider potential further impacts of Brexit on faith-based organisations.
- No Deal Brexit
On 28 January 2019 we were informed by the Home Office of the implications of a no deal Brexit to EEA nationals. All EEA nationals coming to the UK post 30 March 2019 will be admitted under UK immigration rules and will require permission. This is undoubtedly going to be of significance to those faith based charities who rely heavily on the right of free movement.
- 2021 and beyond
The Migratory Advisory Committee released their report on EEA nationals and migration in August. The recommendation is that people from the EEA should face the same immigration rules as those from outside the EEA, and this ties in with Prime Minister Theresa May’s plans to end freedom of movement and adopt a skills-based migration policy. The Government published a white paper in December adopting this recommendation and setting out the future ‘skills based immigration system’ which would be implemented after the transitional scheme.
There are many questions about what this means in practice for faith-based charities who rely on the work of overseas nationals. It is possible that EEA nationals may need to be sponsored. Any organisations who currently sponsor overseas nationals to work in their organisation will be aware of the duties under the immigration rules. Organisations must hold a licence and ensure that they are compliant at all times.
However, there are concerns that EEA nationals who fill lower-skilled jobs will not satisfy the criteria for sponsorship, and this may lead to a shortage of workers needed for unskilled labour.
This may mean that people from the EU would face the same immigration rules as those from elsewhere, once the UK has completely left the EU. This could mean that organisations with a sponsorship licence could be in a more advantageous position in the future if EEA nationals require sponsorship.
- Future recruitment
Strategic planning is key for faith-based organisations who continue to employ from overseas.
Organisations continuing to recruit EEA nationals, and possibly those seeking to begin recruiting and employing overseas nationals, will need to consider the cost implications, legal duties and time constraints. Organisations may need to apply for a sponsorship licence.
The type of licence an organisation will need will depend upon whether they are looking to employ a skilled worker for a longer period, or in a temporary position. These two categories are known as Tier 2 and Tier 5. For faith-based organisations seeking to bring priests, pastors, Nuns or other clergy to the UK, Tier 2 (Minister of Religion) visas may be the most appropriate route.
In order to register and apply for a licence as a Tier 2 sponsor (to employ a skilled worker long term) an online application form will need to be submitted and organisations will need to provide a number of original documents to prove that they are suitable and eligible.
A sponsor licence will ordinarily be valid for four years. This is of course so long as the licence is not revoked or surrendered. As a sponsor, the organisation will need to accept a number of responsibilities and keep good employment-related records, as well as notify the Home Office of changes or issues relating to employees. The Home Office may also make site visits, to ensure that the sponsor is complying.