Back to School Blues: Can I Keep my EU National Au Pair after Brexit?

Childcare. It can be a headache, can't it? As a mother, I get it. As an immigration lawyer, I also understand the importance of compliance. 

I have lost count of the number of clients, friends, friends of friends and long-lost acquaintances who dropped me a line over the years to ask whether they could extend their wonderful nanny's or au pair's visa. I understood the heartache when I said that the individual to whom they had entrusted their children, invited into their home and welcomed into their family would have to return overseas because their visa required it. And this was the case well before Brexit. 

When the referendum result came through, I knew that recruiting for the childcare profession would become more difficult. My walk to the nursery is a constant reminder that so many families rely on EU nationals to look after their children and, therefore, have benefitted from free movement, which has allowed EU nationals to work in the UK without restriction.

When Brexit happens and the free movement ends, all of this will become more difficult. As if organising payroll, PAYE and a pension wasn't enough, in the future, we will also have immigration rules to understand in addition to an ever-changing political agenda—enough of a challenge for big businesses to interpret, never mind a working family.

But let’s be constructive. What do you need to know if an EU national cares for your children? 

If you have an EU national taking care of your children (this could equally be an elderly dependant, house or pet) that you directly employ as an employee, you can continue to employ that person without any further checks. Any EU national that arrives on or before 31 October 2019 (31 December 2020 in a deal), can stay and work in the UK but should apply under the EU Settlement Scheme before 31 December 2020 (30 June 2021 in a deal). This is the UK's online application procedure where the identity of the applicant is usually verified through an app (currently only available on android devices), followed by the submission of an online form and it is actually pretty good. As an employer, you will not need to check that the application has been made (and actually can’t insist that you do)  but it might be worth bringing to your employee's attention as applying and holding status under the scheme will enable the employee to avoid the risk of problems in the future when travelling. If an EU national fails to do this, the individual’s legal status will become unclear, which is best avoided. 

If you are about to employ an EU national who will be relocating to the UK, it might be worth considering having them move to the UK before 31 October 2019. In the event of a no-deal result, free movement would end soon after Brexit. Whilst plans were in place to allow EU nationals to work for at least three years, these plans are under review by the new government, so it is best to avoid the risk. There is no need for the person to start work or have a NI number by the 31st. A used travel ticket plus a bank statement showing transactions in the UK would be sufficient for a successful application. 

And the future? Well, it is concerning. Under the proposed new immigration system, nannies and au pairs would not qualify for a work permit. There is a 12-month temporary visa or a two-year visa for the younger people but these permissions come with a financial cost and are not renewable and do not provide the continuity that families crave. So, whilst there are options, the pool from which to recruit someone to look after our little darlings is decreasing. This will create challenges for families and that, in turn, will create challenges for business.