How to retain your EU Workers

21 December 2020

It has been difficult to recruit agricultural workers in 2020. This will become even harder from 1 January 2021, when EU free movement rights end. So, what can you do to prepare?

The first step is to ensure EU nationals already working for you have protected their rights.

EU nationals resident in the UK by 11:00pm on 31 December 2020 can remain, subject to applying to the EU Settlement Scheme (EUSS). There is a grace period to apply; the deadline is 30 June 2021. But we recommend applying now.

Applications are free of charge. Applicants use a smartphone app called 'EU Exit ID Document Check' to check their passport and prove their identity. Their National Insurance number is used to search HMRC and DWP records. If records show they have been living in the UK, they will not need to provide any further proof of residence unless they choose to do so.

Applicants who have lived in the UK for five years or more will be granted a special type of indefinite leave to remain called “settled status”. This allows them to stay forever. Those who do not yet have five years in the UK will receive “pre-settled status”. This is temporary leave to remain, which they can apply to upgrade to settled status in due course.

Both types of status preserve all of the individual’s rights in the UK, including their right to work and the right to access the NHS on the same basis as British nationals. The status is only recorded online, the individual does not receive a physical document.

To date there have been almost 4.5 million applications to the EUSS. However we believe a large number of people still need to apply. A study by the Social Market Foundation published in September 2020, found that over 40% of EU Workers in the Fenland area were completely unaware of the EUSS. We are particularly worried that a large number of EU nationals working in agriculture have yet to protect their status in the UK.

Employers play a key role in ensuring their workers know about the scheme. Birketts has been supporting employers with seminars and webinars for staff and drafting appropriate updates and communications. The Government has also produced an employer’s took kit to provide advice and guidance on the EUSS is available in different languages.

Where a business has a cohort of EU workers they will often support each other with applications, by sharing experiences and answering each other’s questions about the Scheme. Help is also available from the EU Settlement Resolution Centre. There is also a list of charities with grant funding to support vulnerable applicants.

The EUSS is aimed at EU nationals who live in the UK for at least six months every year. If they can qualify, this gives the best rights. However, some seasonal workers will not meet the residence requirements. If they have been living abroad but coming to work in the UK every 12 months, they may qualify for a Frontier Worker permit. This new scheme was launched on 10 December 2020 and will be a key solution to allow experienced pickers to return for annual harvests. For further details please contact a member of our Immigration Team.

EU nationals who do not have status under the EUSS or as a Frontier Worker will need to obtain a visa, just like non-EU nationals.

Back in 2019, the Government launched a small pilot scheme for Seasonal Workers working in agriculture and horticulture. We await a decision on whether that scheme will be extended and expanded in 2021.

Becoming a licensed sponsor would allow you to recruit Skilled Workers. But this is expensive and only applies to roles skilled to RQF3 (A level) or above, for example agricultural contractors, agricultural technicians, crofters, farmers or herd managers. A significant barrier is the minimum salary requirement of £25,600, dropping to £20,480 for new entrants under age 26.

The Government often praises the Australian immigration system. They have a youth mobility visa that can only be extended if a minimum period is spent doing farm work in underpopulated areas. It remains to be seen if the UK will borrow this concept. At the moment our youth mobility scheme does not have any conditions attached regarding the type of work to be done.

It is clear that finding good new recruits will be challenging, so please take action now to support and protect your current workforce.

For more details regarding any of the matters covered in this update, please contact Clare Hedges or another member of our Immigration Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.


Clare Hedges

Legal Director - Head of Immigration

+44 (0)1223 326600


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