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Lisa Kingston is managing director of legal services firm In-House Law
Brexit has brought changes to the recruitment and immigration landscape that will have huge knock-on effects in construction, hampering the sector’s ability to recruit and retain appropriate labour.
Upcoming deadlines this summer will only exacerbate skills shortages, and may make projects more expensive to deliver, or slow programmes down, with obvious consequences for the bottom line.
The majority of construction firms are currently making four big mistakes that will create problems for them after 30 June 2021, when EU citizens without legal permission to remain in the UK will be obliged to leave.
Mistake 1: Brexit is done, so what’s the problem?
The problem is that there have been wholesale changes in UK immigration law that affect all EU citizens, their family members and their employers.
EU citizens already in the UK at the end of 2020 should have made a formal application enabling them to remain in the UK under either the European Temporary Leave to Remain scheme (Euro TLR), or the EU Settlement Scheme.
From 1 July this year, all employers will have to check the status of new recruits. Any EU citizens they employ (aside from Irish citizens) must have a valid UK immigration status under the Euro TLR, the EU Settlement scheme, or be sponsored through the new points-based immigration system.
Mistake 2: Believing there is no rush
In reality, 30 June 2021 is a cliff-edge deadline for all EU-citizen workers to make a formal application to remain in the UK, if they have not already done so.
If you employ an EU citizen who does not have Euro TLR and who has not submitted a valid application under the EU Settlement scheme after 30 June 2021, they will be classed as an illegal immigrant. You may then face legal consequences for employing an illegal immigrant.
Mistake 3: Leaving workers to sort out their status
Assuming your EU-citizen employees and contractors will seek permission to remain in the UK is a high-risk approach. The UK’s immigration rules are complex, even for people born and bred in the UK with English as their first language. The official guidance on applications under the EU Settlement Scheme, for example, runs to 135 pages.
If your EU-citizen employees or contractors missed the 31 December 2020 deadline for the Euro TLR scheme and also miss the 30 June 2021 deadline, or meet the deadline but have an incorrect or technically defective application rejected, they could then become an illegal immigrant and employing them would be illegal. The risk of getting applications wrong is quite high and it may be the employer that bears the consequences of any mistakes.
Mistake 4: Looking the other way
All employers have legal duties, and there can be serious consequences if mistakes are made after the 30 June deadline.
As a director of a company, you would be personally liable if found to be employing an illegal immigrant. The offence is a criminal one and liability will attach to you if you employ someone you know lacks the right to work in the UK, or have reasonable cause to believe that to be the case. Those found guilty can face unlimited fines and a jail term of up to five years.
You could be found guilty if you have any reason to believe that your employee:
- Was not entitled to enter, or does not have permission to remain in the UK;
- Had permission to remain but it has expired;
- Is not allowed to do certain types of work; or
- Has incorrect or false papers.
Given that changes to the new immigration system were announced before the UK left the EU in March 2019, and have been widely publicised since, it would be an uphill struggle for any director to argue they were unaware of the new regime.
This makes a guilty finding more likely, so you should take extra care to ensure you comply with the rules.
