The Brexit health and social care crisis

The ‘leave’ vote on 23 June 2016 has far ranging implications for UK businesses but topping the list of employers’ headaches is the question of how Brexit will affect migrant workers already employed or likely to be needed in the future. This has been echoed in our discussions with health and social care providers in recent months.

As a result we have launched a survey to gauge the action being contemplated by employers across the sector and would welcome your views by completing the survey:  https://www.surveymonkey.co.uk/r/F6GVWJ2

When will the UK leave the EU?

Extraction from the EU will take two years from the date the UK invokes Article 50.  Whether that happens by the end of March 2017 as indicated by Theresa May still remains in question.

Why should UK care businesses be concerned?

Unfortunately for British health and social care businesses, there is much to worry about due to their reliance on migrant workers to fill essential jobs.  It is estimated that 1 in 20 of England’s adult social care workforce are from EEA countries and 90% of those care workers do not have British citizenship and are facing uncertainty over their future immigration status.

The UK’s dependency on European migrants has markedly increased since 2012 when the immigration rules changed to make it more difficult for non-EEA people to enter the UK to work in social care.  Although Theresa May has indicated an intention to protect the status of EU nationals already living in the UK, that intention may not be realised if reciprocal arrangements for British Citizens in European member states are not protected in return.

Leading charities have called for European migrant care workers to be given the right to remain in any future migration arrangements to ensure the continuation of vital support.  Others have called for providers of social care services to retain the ability to recruit staff from the EU when there are not enough resident workers to fill vacancies, potentially by adding specific occupations to the shortage occupation list which currently enables employers to recruit nurses and midwives from outside the EEA.

Whilst the free movement rights of EEA nationals will not change until we formally exit the EU at the earliest in 2019, there is work to be done in retaining migrant workers, particularly those who may feel now that they are unwelcome and undervalued.

How can employers protect their workforce?

Employers could offer their migrant workers assistance in establishing and cementing their rights of residence and even assisting in applying for citizenship if so desired.  Having recruited and trained those migrants, retaining them in employment for the long term is financially more beneficial than recruiting afresh.

As the status of EEA nationals has not yet changed, for those migrants currently living and working in the UK, the best way to secure their ongoing ability to remain in the UK despite Brexit looming large is for their rights of residence to be formalised.  The first step is to apply for a registration certificate which can make it easier to prove a right to work in the UK and, if needed, to claim certain benefits and services.  Family members can also apply for a residence card in certain circumstances.

The next step is to apply for a permanent residence card.  Qualifying persons (i.e. those who are working, studying, self-employed, self-sufficient or looking for work) and who have lived in the UK for 5 years can apply for this card to prove their right to live in the UK permanently.  Family members can also apply.  In some cases, permanent residence can be confirmed after a shorter period of residence.

The registration certificate and permanent residence card can be obtained for a Home Office fee of £65.  Provided the eligibility requirements are met and the correct information and documentation is supplied when the applications are made, both processes are simple but can take 6 months or more.  The referendum vote had led to a significant increase in applications for permanent residence and the processing times have increased.  The sensible course is to act quickly.

If the migrant wishes to remain in the UK permanently, the final step is to become naturalised, that is to apply for British citizenship.  In order to apply for British citizenship, the migrant must have a permanent residence card and must have held permanent residence for one year before applying as an EU citizen.  There are a few hurdles to be navigated including an assessment of the time spent absent from the UK; the need to pass the Life in the UK Test and an approved English Language Test (or hold an approved degree) and satisfy the Home Office that the migrant is of “good character”.  However, with a carefully prepared application the process is relatively straightforward.  Once the naturalisation certificate has been issued, the migrant can apply for a British passport.

No time to delay

Because of the increase in applications for registration and permanent residence, employers can greatly assist their migrant workers by advising them of their rights and the requirements to be met if they intend to remain in the UK.  Applications which are delayed until Article 50 has been invoked and the two year ‘notice period’ is in progress could be impacted if at the end of that period they have not been decided.   The consequences of delaying action may be severe if free movement is replaced by a new and more complex system of entry clearance which is a very real possibility.

The alternative view

Of course there is an alternative view that Brexit will ‘level the playing field’ for non-EU care workers who currently have to satisfy the Home Office’s rigorous eligibility requirements and processes before any application for entry to the UK is granted.  However, we believe that priority will be given to the UK resident labour market, as currently applies with the inclusion of EU nationals benefitting from free movement.  Therefore the competition for UK jobs is likely to increase. If UK health and social care businesses can only recruit from outside the UK if they can demonstrate an inability to recruit from the resident labour market, those businesses may find that their payroll costs increase significantly and that our resident labour market drives payroll costs higher.  This is disastrous for the sector as a whole where costs are squeezed by local authority funding restraints.

If you are concerned about the immigration law impact of Brexit on your business and wish to discuss how you can protect your migrant workforce please contact Claire Thompson, Partner and Head of Immigration (Health and Social Care Team), on 01905 746462 or at cthompson@hcrlaw.com.

Click here to download our free guide on securing your workforce.

Harrison Clark Rickerbys has 400 staff and partners based at our six offices, who provide a complete spectrum of legal services to both business and private clients, regionally and nationwide. To contact our teams, click on the links below for our:

 

Author
Claire Thompson
Partner
Direct Dial: +44 (0)1905 746462
Mobile: +44 (0)7824 622 474
Email: cthompson@hcrlaw.com