As developments in the Brexit process continue to emerge, the CIPD will remain focused on providing news and updated resources to support your planning
From 1 January 2021, the United Kingdom is no longer a member of the EU, the Single Market or the Customs Union. This has created barriers to trade in goods and services, and to cross-border mobility and exchanges in both directions. The Trade and Cooperation Agreement agreed on 24 December 2020 limits disruptions yet public services, businesses, citizens and stakeholders on both sides will be affected. There has been an end to the free movement of people between the EU and the UK and all movements from 1 January 2021 will be subject to the Irish-UK Common Travel Agreement, or the EU's and UK's immigration legislation applicable to third country nationals.
An EU summary of the agreement is here.
How has Brexit changed employment status in Ireland?
Overall, the right to employment and immigration regulations to work in Ireland have not changed as a result of the Brexit agreement. Irish and UK citizens will be able continue to travel freely for business travel and to live and work between both countries under the Common Travel Agreement (CTA).
As you assess your actions as a result of Brexit, make sure you know the profile, location, citizenship and activities of your workforce and how they may be affected, including where they got their qualifications if they work in a regulated profession. Prepare communications to reassure current employees and to let employees know about changes to entry and documentation requirements for work visits, for example if they are UK citizens going to the EU or non-Irish EU citizens travelling to the UK and that it is critical to make the relevant preparations before travel. Ensure they receive the support and information they need.
What entitlements have Irish and UK citizens under the Common Travel Agreement (CTA)?
Under the Common Travel Agreement (CTA), Irish and British citizens can move freely and reside in either jurisdiction and enjoy associated rights and entitlements including access to employment, healthcare, education, and social benefits. Neither Irish citizens in the UK nor British citizens in Ir-land are required to take any action to protect their status and associated rights, and staff will be able to travel from one country to the other for work without disruption.
Under Irish legislation, UK citizens working in Ireland can be in the EEA employee headcount for the purposes of the 50/50 rule which requires employers to ensure at least 50% of their workforce are from Ireland/EEA or the Swiss Confederation. The 50/50 rule is a measure which underpins the Government’s employment creation objectives by requiring employers in the State to hire in a balanced manner from the domestic labour market.
Irish nationals currently working in the UK will not need to apply for settled status in the UK, but the situation has changed for UK citizens who have to work or travel in the EU and for other EU citizens who have to work or travel to the UK.
What are the implications for regulated professions?
Regulated professions have specific qualification requirements that a person needs to possess by law in order to access or pursue a regulated profession, or to engage in regulated activities in a given country. Qualification requirements vary between professions. In January 2021 there were 182 regulated professions listed for Ireland. Human resources is not a regulated profession and all CIPD qualifications and membership status continue to demonstrate evidence of professionalism.
After 31 December 2020, new professional qualifications issued by UK bodies will no longer be automatically recognised in Ireland under EU law, and vice-versa. This may have implications for those working or seeking to work in an EU Member State on the basis of professional qualifications obtained in the UK. However, if employees had these qualifications recognised by the relevant EU regulator before the end of the transition period, there will be no change.
For qualifications not gained or recognised before 1 January 2021, as a general rule, UK nationals, irrespective of where they acquire their qualifications, and EU citizens with qualifications acquired in the UK will need to have their qualifications recognised in the relevant Member State on the basis of each country's existing rules for third-country nationals. In the future there may be a mechanism whereby the EU and the UK may agree the mutual recognition of certain professional qualifications. Employees may need support to acquired recognition from the relevant regulators.
What if I have EU employees who are not Irish nationals that need to travel to the UK for work?
Other than Irish citizens, EU/EEA/Swiss employees travelling to the UK need to comply with the UK’s new business visitor rules and visa requirements. The UK will no longer accept national ID cards for entry to the UK.
Can employees cross the Irish border for work?
Where you have employees who need to cross the border between Ireland and Northern Ireland for work, Irish and UK citizens can continue to travel and work as they have previously. Irish and UK citizens can travel freely between and work within both countries under the Common Travel Agreement (CTA).
The CTA does not apply to other EU citizens. Non-Irish EU citizens entering Northern Ireland from Ireland are now subject to the same immigration rules as would be the case for entry into other parts of the UK and will need appropriate documentation.
What happens employees who are UK citizens and have to travel to other EU countries for work?
UK employees travelling to work in other European countries will need apply for relevant visas and permits in each specific EU country, even if working only for a few days. Check out the entry requirements or necessary documents and ensure employees have them ready before travelling. Pay particular attention if they are part of a regulated profession requiring set qualifications.
UK nationals travelling to the EU for business meetings only may be able to continue as normal under the relevant documentation, but visits will be limited to 90 days in any 180-day period for the whole Schengen zone (not individual countries). This could restrict individuals where work requires them to travel or spend time across EU countries as part of their role.
What if we have EU employees working in the UK who are not Irish citizens?
EU/EEA/Swiss citizens, excluding Irish citizens, working and living in the UK before 11pm on 31 December 2020 have to apply for the UK’s EU Settlement Scheme by June 2021, where they will be granted settled or pre-settled status. Settled status will be given to those who have lived continuously in the UK for five years and enable the holder to remain in the UK indefinitely. Pre-settled status will be given to those who do not yet have five years’ continuous residence. Individuals with pre-settled status can apply for settled status once they have accrued five years’ continuous residence. Irish nationals do not need settlement status to live and work in the UK, but other. EU employees who have not applied by June 2021 could be required to leave the UK.
What about UK employees based in other EU countries?
UK nationals will now require permission from the EU country in which they are based to remain and continue working, for example, via a work permit or reciprocal settlement status. Arrangements vary between EU countries. Employers should review the latest position for each member state published by the European Commission and support employees with required permission applications.
Where employees work within a regulated profession check if their qualifications are officially recognised in the EU country of work if the qualifications were not attained there.
What are the likely main components of the UK’s post-Brexit immigration system?
If you are recruiting EU (excluding Irish) citizens to work in the UK, then EU/EEA/Swiss nationals arriving newly for work in the UK will need to qualify under the points-based post-Brexit immigra-tion system. From 1 January 2021, EU/EEA/Swiss citizens (except Irish citizens) will be subject to the same migration restrictions as non-EU citizens. The UK government’s post-Brexit immigration system will be a single system for all nationalities. There will also be increased charges involved in recruiting non-UK workers via the skilled route. Full guidance is provided in CIPD’s legal guide to immigration in the UK.
What about posted workers?
There are no rules to cover the posting of UK workers in the EU, or vice-versa. This means that, for example, a worker sent by the UK to the EU to work will have to pay social security contributions in the EU Member State and will be subject to the legislation of that country. As a transitional provision, Member States may request, by notifying the Commission, to continue the posting system as it exists now for a period of up to 15 years and during this period, posted workers will pay their social security contributions in the country that sent them.
Are there changes to data protection under the agreement?
No, the Agreement includes a commitment by the EU and UK to uphold high levels of data protection standards and enable cross border data flows.
While the agreement recognises the right of the parties to regulate data protection, there is a commitment to retain current data flows of information, For the EU this means that UK standards are essentially equivalent to the EU standards set out in the EU's General Data Protection Regulation (GDPR), and respect specific additional data protection standards stemming from opinions of the EU Court of Justice. Current data transfer processes and protections can be maintained, but these will be reviewed within three years.
Have a specific query?
Have a specific legal query about Brexit not covered above? CIPD members can call our Employment Law Helpline on 1800 812 603 to get advice on all aspects of Irish employment law. Members are entitled to 20 calls per year (25 if you’re a Chartered member). The helpline is available 24 hours a day, 7 days a week
An EU summary of the agreement is here.
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