this Open letter is a respOnse to bank of scotland's document
This is an open letter published in response to Bank of Scotland's guidelines for businesses about the status of their EU employees after Brexit. business.bankofscotland.co.uk/insight/gameplan/Next-steps-employing-EU-nationals-pre-and-post-exit
response of migrants scotland
Dear Sir/Madam,
Re: Bank of Scotland advisory: “Next steps: employing EU national’s pre and post-exit”
I am writing on behalf of Migrants Scotland, an organisation based in Edinburgh which was formed to support migrants in Scotland and allow their voices to be heard.
We would like to express our serious concerns about the advice on employing EU nationals, written by Natasha Chell of Laura Devine Solicitors and published on the Bank of Scotland website .
We believe that employers can and should play a role in supporting employees who are EEA/EU nationals, as well as staff who are UK citizens but whose partners are EEA nationals. Edinburgh University provides a positive
example for what employers can do to support staff in this respect. It has
Government, nor by any political party .
In addition we are concerned about the focus on encouraging EU nationals to apply for a registration certificate or permanent residence card as soon as possible.
We believe that EEA nationals should have access to good and independent advice about their options and that people’s personal decisions whether or not to apply for a registration certificate or permanent residence card must be respected.
The Home Office currently advises that EEA nationals “don’t need to do anything as a result of Article 50 being triggered” and that “under EU law, you don’t need a document to confirm your permanent residence status in the UK”.
In fact, contrary to your advice the Home Office is seeking to dissuade EEA nationals from applying for such documents, presumably because it does not have the capacity to process larger numbers of applications under th 4
existing procedures .
Finally, we are seriously concerned that your advice does not alert employers to the risk of unlawful discrimination against EEA nationals. Discrimination against people who have the right to work in the UK based on their 56
‘colour, nationality or ethnic or national origins ’ constitutes unlawful race discrimination under the Equality Act 2010 . Even non-EEA nationals with time-limited permission to work in the UK must not be discriminated 7
against by employers, as the Government’s “Code of practice for employers avoiding unlawful discrimination while preventing illegal working” illustrates . Treating EEA nationals differently from and less favourably than U citizens because of uncertainties about their future status post-Brexit could constitute unlawful race discrimination. Furthermore, in addition to the Equality Act 2010, i.e. UK-wide legislation, the UK is also still covered by the jurisdiction of both the European Court of Justice and European Court of Human Rights. In relation to equality and non-discrimination this would include for example:
Article 18 of the ‘Consolidated Treaty on the Functioning of the European Union’
“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited” . Or
‘Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin’
We are not suggesting that the advice published by BoS actively encourages any discrimination against EEA nationals. However, we are deeply concerned that the tone of the document, and the emphasis on a purely theoretical possibility of an Immigration Skills Charge one day being extended to EEA nationals currently resident in the UK, could inadvertently foster discriminatory attitudes and actions - particularly since the illegality of such discrimination has not been mentioned.
[In short there continues to be a significant scope of anti-discrimination domestic legislation, European and domestic jurisprudence, EU directives and EU law which applies directly to the UK and supersedes ambiguous political messaging with no legal character. The theoretical possibility that a law not yet even proposed - i.e. an Immigration Skills Charge for EEA nationals resident in the UK - might be introduced in future must not disrup the operation of existing laws.
Furthermore given that the ‘Great Repeal Bill’ intends to integrate existing EU law into the UK common law , including upwards of 20,000 statutes of subordinate legislation currently applicable in the UK courts both pre a
post ‘Brexit’ it remains to be seen how a ‘Immigration Skills Charge’ would be enacted to be compliant with pre-existing anti-discrimination mechanisms.]
We believe that any advice to employers in relation to EEA nationals should highlight the need to comply with these existing domestic and EU legislation and ACAS guidance on avoiding discrimination .
We therefore urge you to withdraw or competently amend your advice, to enable it to be compatible with existing jurisprudence and to replace it with one that focusses on support for employees who are EEA nationals an on best practice for avoiding all direct and indirect discrimination. Following Edinburgh University’s example would go a long way to support staff who are EEA nationals.
We would be happy to discuss this issue further with you and look forward to hearing from you. We can be reached at [email protected]. Many thanks in advance.
Your sincerely,
Almuth Ernsting & Joanna Zawadzka, Migrants Scotland
1. business.bankofscotland.co.uk/insight/gameplan/Next-steps-employing-EU-nationals-pre-and-post-exit/?utm_source=Facebook &utm_medium=Social&utm_campaign=BoS%20Gameplan%20April%202017&utm_content=Natasha%20Chell%20graphic%20Fa cebook%20link&WT.mc_id=150322220|321013001|81495826
2 www.ed.ac.uk/human-resources/news/support-for-eea-staff-and-staff-with-eea-partners
3 The only proposals for applying the Skills Charge to EEA nationals which we have been able to find relate to EEA nationals who move to the UK post-Brexit – not to those already resident in the UK.
4 www.gov.uk/eea-registration-certificate/overview
5 The Equality Act (2010) Part 2. Section 1. Schedule 9 ‘Race’
6 Konieczna v Whitelink Seafoods Ltd
7www.gov.uk/government/uploads/system/uploads/attachment_data/file/311665/Code_of_practice_on_avoiding_unlawful_dis crimination_while_preventing_illegal_working.pdf
8 Consolidated version of the Treaty on the Functioning of the European Union – Article 18 (nationality)
9 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Official Journal L 180 , 19/07/2000 P. 0022 - 0026
10 The White Paper on the Great Repeal Bill indicates that directly applicable rights in the EU Treaties will also be incorporated into domestic law
11 www.acas.org.uk/media/pdf/d/8/Equality-and-discrimination-understand-the-basics.pdf www.acas.org.uk/media/pdf/1/6/Race-discrimination-key-points-for-the-workplace.pdf
Re: Bank of Scotland advisory: “Next steps: employing EU national’s pre and post-exit”
I am writing on behalf of Migrants Scotland, an organisation based in Edinburgh which was formed to support migrants in Scotland and allow their voices to be heard.
We would like to express our serious concerns about the advice on employing EU nationals, written by Natasha Chell of Laura Devine Solicitors and published on the Bank of Scotland website .
We believe that employers can and should play a role in supporting employees who are EEA/EU nationals, as well as staff who are UK citizens but whose partners are EEA nationals. Edinburgh University provides a positive
example for what employers can do to support staff in this respect. It has
- ● offered group information sessions;
- ● offered all affected staff meetings with external immigration advisors;
- ● provided staff with details of solicitors specialising in immigration law;
- ● made available interest free loans to help staff pay the fees for applying for a permanent residency card, for Indefinite Leave to Remain, or for UK citizenship;
- ● provided help with obtaining any requirement documentation which the university can supply.
We believe that this sets an example which other employers should aspire to.
The advice published by Bank of Scotland, on the other hand, urges employers to “take action” to “reduce business risk”, with the term ‘risk’ appearing seven times, the word ‘support’, on the other hand, just once.
Government, nor by any political party .
In addition we are concerned about the focus on encouraging EU nationals to apply for a registration certificate or permanent residence card as soon as possible.
We believe that EEA nationals should have access to good and independent advice about their options and that people’s personal decisions whether or not to apply for a registration certificate or permanent residence card must be respected.
The Home Office currently advises that EEA nationals “don’t need to do anything as a result of Article 50 being triggered” and that “under EU law, you don’t need a document to confirm your permanent residence status in the UK”.
In fact, contrary to your advice the Home Office is seeking to dissuade EEA nationals from applying for such documents, presumably because it does not have the capacity to process larger numbers of applications under th 4
existing procedures .
Finally, we are seriously concerned that your advice does not alert employers to the risk of unlawful discrimination against EEA nationals. Discrimination against people who have the right to work in the UK based on their 56
‘colour, nationality or ethnic or national origins ’ constitutes unlawful race discrimination under the Equality Act 2010 . Even non-EEA nationals with time-limited permission to work in the UK must not be discriminated 7
against by employers, as the Government’s “Code of practice for employers avoiding unlawful discrimination while preventing illegal working” illustrates . Treating EEA nationals differently from and less favourably than U citizens because of uncertainties about their future status post-Brexit could constitute unlawful race discrimination. Furthermore, in addition to the Equality Act 2010, i.e. UK-wide legislation, the UK is also still covered by the jurisdiction of both the European Court of Justice and European Court of Human Rights. In relation to equality and non-discrimination this would include for example:
Article 18 of the ‘Consolidated Treaty on the Functioning of the European Union’
“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited” . Or
‘Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin’
We are not suggesting that the advice published by BoS actively encourages any discrimination against EEA nationals. However, we are deeply concerned that the tone of the document, and the emphasis on a purely theoretical possibility of an Immigration Skills Charge one day being extended to EEA nationals currently resident in the UK, could inadvertently foster discriminatory attitudes and actions - particularly since the illegality of such discrimination has not been mentioned.
[In short there continues to be a significant scope of anti-discrimination domestic legislation, European and domestic jurisprudence, EU directives and EU law which applies directly to the UK and supersedes ambiguous political messaging with no legal character. The theoretical possibility that a law not yet even proposed - i.e. an Immigration Skills Charge for EEA nationals resident in the UK - might be introduced in future must not disrup the operation of existing laws.
Furthermore given that the ‘Great Repeal Bill’ intends to integrate existing EU law into the UK common law , including upwards of 20,000 statutes of subordinate legislation currently applicable in the UK courts both pre a
post ‘Brexit’ it remains to be seen how a ‘Immigration Skills Charge’ would be enacted to be compliant with pre-existing anti-discrimination mechanisms.]
We believe that any advice to employers in relation to EEA nationals should highlight the need to comply with these existing domestic and EU legislation and ACAS guidance on avoiding discrimination .
We therefore urge you to withdraw or competently amend your advice, to enable it to be compatible with existing jurisprudence and to replace it with one that focusses on support for employees who are EEA nationals an on best practice for avoiding all direct and indirect discrimination. Following Edinburgh University’s example would go a long way to support staff who are EEA nationals.
We would be happy to discuss this issue further with you and look forward to hearing from you. We can be reached at [email protected]. Many thanks in advance.
Your sincerely,
Almuth Ernsting & Joanna Zawadzka, Migrants Scotland
1. business.bankofscotland.co.uk/insight/gameplan/Next-steps-employing-EU-nationals-pre-and-post-exit/?utm_source=Facebook &utm_medium=Social&utm_campaign=BoS%20Gameplan%20April%202017&utm_content=Natasha%20Chell%20graphic%20Fa cebook%20link&WT.mc_id=150322220|321013001|81495826
2 www.ed.ac.uk/human-resources/news/support-for-eea-staff-and-staff-with-eea-partners
3 The only proposals for applying the Skills Charge to EEA nationals which we have been able to find relate to EEA nationals who move to the UK post-Brexit – not to those already resident in the UK.
4 www.gov.uk/eea-registration-certificate/overview
5 The Equality Act (2010) Part 2. Section 1. Schedule 9 ‘Race’
6 Konieczna v Whitelink Seafoods Ltd
7www.gov.uk/government/uploads/system/uploads/attachment_data/file/311665/Code_of_practice_on_avoiding_unlawful_dis crimination_while_preventing_illegal_working.pdf
8 Consolidated version of the Treaty on the Functioning of the European Union – Article 18 (nationality)
9 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin Official Journal L 180 , 19/07/2000 P. 0022 - 0026
10 The White Paper on the Great Repeal Bill indicates that directly applicable rights in the EU Treaties will also be incorporated into domestic law
11 www.acas.org.uk/media/pdf/d/8/Equality-and-discrimination-understand-the-basics.pdf www.acas.org.uk/media/pdf/1/6/Race-discrimination-key-points-for-the-workplace.pdf