The Scottish hotel industry is heavily reliant on EU migrant workers and Brexit poses a serious threat to the ease of access of low-skilled EU migrant labour in the UK. How can the industry survive and prepare its hiring practices faced with the all too real possibility of a no-deal scenario? Putting aside the possibility of another Scottish referendum, this article will look at what best practices Scottish hoteliers can put in place amidst all this uncertainty.

Today, employers all over the UK are obliged to carry out right to work checks on every individual that they employ. Currently, EU nationals are not required to provide a residence document to confirm their status in the UK. However, as of 1 January 2021, employers will be required to carry out these checks to ensure that all EEA nationals have a document to confirm that they either hold pre-settled or settled status. We are potentially facing another Windrush scandal.


EEA nationals currently residing in the UK can apply for pre-settled or settled status now and should do so quickly no matter whether or not we leave with a deal.   Some may already have been in the UK for a continuous period of more than 5 years and may therefore have the option to naturalise as British citizens.


For those who have not yet entered the UK and will not enter before 31 December 2020, the process by which they will be able to work in the UK will be reliant on whether the agreement reached.  


The Prime Minister, Boris Johnson, has rigorously ripped up his predecessor’s post-Brexit immigration plans and has in effect taken a more liberal approach. If the UK leaves with a deal, he has stated that he intends to introduce an ‘Australian-style points-based system’ for all nationalities to ‘continue to attract the brightest and best talent from around the world’, whilst declining to set a limit on the number of skilled migrants who will be able to work in the UK. In addition, he has asked the Migration Advisory Committee (the “MAC”) to undertake a review of the current Points Based System (PBS). 


Brexit could result in a decrease in economic output resulting from a lack of access to hospitality industry workers. Under the current scenario, the hospitality industry has said that it can expect to lose an average of 23% of manual workers.


If we look at the hotel sector more closely, then this reduction stands to include kitchen staff, front-of-house workers and cleaners, who under the current immigration rules are too low-skilled to qualify for the Tier 2 migrant worker category. It is unknown, at this stage, whether any ‘Australian-style’ Points Based System brought in will take such ‘low-skilled’ workers into consideration, to ensure that the Hospitality industry does not face shortages in the future.


The MAC has recently offered some potential relief in the form of changes to the current Shortage Occupation List.  This could ease the current restrictive rules that the hospitality industry is faced with as regards hiring the likes of non-EEA national chefs in the UK, for example. However, current regulations for the hiring of cleaners and front-of-house staff are non-existent. It all depends on whether the establishment looking to hire has, or will, obtain a sponsor licence to enable the migrant to work in the UK and be sponsored on the basis of a Tier 2 visa (this can prove difficult seeing as the Home Office has deemed the work to be ‘low-skilled’).


Given the recent news about how our new Prime Minister would like to change Theresa May’s immigration proposals, there is definitely no certainty as to procedures for job roles classified as low-skilled in the UK.


With the MAC currently reviewing the new proposals, it is unlikely that they will be able to produce a comprehensive report before 31 October 2019. The requirements for the new system may be similar to the current sponsor licence procedure but only time will tell – so best be prepared no matter where you are based in the UK.  After all, the only certainty anyone has is the uncertainty of the situation.


Comment piece by Sasha Lal, Immigration Consultant at Gherson Solicitors


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