By the time this year’s final issue of Third Sector goes to press the UK is likely to have left the European Union. Whether the exit will be orderly, or – statistically more likely at the time you read this than it was a year ago – a spectacular no-deal crash out, remains to be seen.
Offering practical advice on how employers might prepare can therefore be a tricky business. But there is one thing that experts agree charity employers supporting EU staffers through Brexit can do: buy an Android phone.
Support settled status
"It sounds so specific, but the practical thing to do is provide some of your facilities with an Android phone that will upload relevant documents to the EU Exit app," says Marley Morris, associate director for immigration, trade and EU relations at the Institute of Public Policy Research.
The app was launched by the Home Office to help EU workers who currently reside in the UK apply for settled status (see Brexit glossary, bottom). The fact that it doesn’t work for iPhones could no doubt be spun into some sort of metaphor for the clunky and inconsistent progression of Brexit. But Morris, who wrote the 2018 report The Charity Workforce in Post-Brexit Britain: Immigration and Skills Policy for the Third Sector, says supporting and encouraging EU workers to apply for settled status in good time is one of the best things charity employers can do with only weeks to go before exit day.
"This would confirm your employees’ right to stay and work in the UK," he says. "In the circumstances I think that is the biggest guarantee they can get."
Morris’s 2018 research found that an estimated 6.5 per cent of the charity workforce was made up of non-UK nationals, 3.8 per cent of whom were from the EU: the numbers more than doubled from 14,000 to 31,000 over the past two decades.
With the government yet to confirm what the provisions will be for these workers after 31 October, Chetal Patel, business immigration lawyer and partner at the law firm Bates Wells, stresses it is crucial that charity employers supporting staff through Brexit have a firm grasp of their workforce composition and their rights.
"Know your workforce," she says. "Establish whether employees can obtain settled status and encourage applications now, because we are likely to see a surge between now and October.
"Then support staff in submitting their online applications, potentially buying Android phones for the office to ensure it’s easy to submit those online applications in-house."
Charity employers that support the 3.8 per cent of non-European Economic Area workers under Tier 2 and Tier 5 skilled visas should also be aware of changes to visa sponsorship guidance, introduced by the government in August.
"The Home Office has updated Appendix D to reflect the opening up of e-gates to enter the UK if an individual holds a valid visa," Patel explains.
"This change covers the situation in which some visa holders come into the UK and might no longer obtain a passport stamp, so a sponsor should check the date the person entered the UK to ensure that it’s within the validity of their Tier 2/5 visa."
It’s vital, she says, that sponsors check this and retain a record of the evidence, because a sponsored national will not have permission to work if they enter the UK before their visa becomes valid.
"In addition, for those charities that sponsor individuals under Tier 2 (General) visas, such as a charity leader or senior executive, it would be prudent to retain this additional evidence because they might be able to obtain settled status after five years," Patel adds.
Although the Home Office guidance is more of a best-practice rule than a legal stipulation, charities that fail to supply the relevant documents in the event of an audit could face suspension or, in a worst-case scenario, they could even lose their sponsor licences.
And Patel warns that some charities employing Tier 5 temporary workers, such as volunteers, have already faced suspension challenges in the past year.
"We act for a number of charities and last year we noticed a trend in which a number of charities had their sponsor licences suspended," she says. "An inconsistent approach was being applied to Tier 5 visas, which was very concerning.
"It’s very important that the Home Office be educated on sector terminology: in some instances it rejected phrases such as ‘pocket money’, a term that is very much an everyday part of language in the voluntary sector."
Ensuring that charities with a heavy reliance on volunteers are compliant is vital, Patel warns: "If sponsor licences were to be suspended or revoked, it could put some charities out of business, especially those that are heavily reliant on migrant workers."
Educate and prepare
Whether EU workers are transferred to existing structures of visa entry or to a new points-based immigration system based on the Australian model is something that is being considered by the Migration Advisory Committee, which will report its findings in January 2020. But charity employers could arguably benefit from familiarising themselves with the vagaries of non-EEA entry in the meantime.
According to 2018 research from the IPPR and the Charity Finance Group, 62 per cent of charity representatives had no experience of using the visa system to recruit workers from outside the EU.
Morris’s research into what might happen should the government decide to transfer non-EEA immigration rules to EU citizens paints a fairly bleak outlook. He estimates that about 82 per cent of EU charity employees would become ineligible
For now, both Patel and Morris agree that charity employers supporting foreign staffers should focus on small, granular changes and think creatively about the future.
"Remember that – for now – we work under EU employment law, so there is no justification for discrimination when it comes to hiring EU nationals," Morris says. "The citizens who start work in the next few months should have the right to reside. Charity employers that do rely on foreign staffers will need to think strategically and creatively in the next few years about how they can develop their workforces without necessarily having to rely on recruiting from the EU."
Patel agrees: "Think about your key recruitment plans both in terms of paid and unpaid roles. Bring staff in before 31 October if possible, and fine-tune your contingency plans. A failure to plan is a plan to fail."
And, of course, don’t forget to buy that Android phone.
A Brexit glossary for charity employers
EU Exit – ID Document Check app The mobile application allows a user to confirm their identity by scanning their passport and verifying it belongs to them. It requires an Android phone with NFC (near-field communication) to function.
Settled status This allows EU nationals and their families who reside in the UK the same rights as British citizens after Brexit. An EU employee needs to have lived in the UK for five years to apply for settled status. If they have lived in the UK for fewer than five years they can apply for pre-settled status.
Tier 2 (General) Work Visa This is a work visa for non-EEA citizens who have been offered paid, skilled jobs in the UK. Charities and public and private organisations that employ these workers have a licence to offer these visas and are sometimes called Licensed Sponsors.
Temporary Worker – Government-Authorised Exchange Visa (Tier 5) This applies to unpaid people coming to the UK for a year or less, and is often applied to students and charity volunteers. Charity employers are subject to the recent Appendix D changes.
Points-based system Under these immigration systems, used in countries such as Australia, visas are issued under a points-based system with criteria that range from age to relevant work experience.