Pam Sidhu, Employment and Business Immigration lawyer at Wilkes, considers the key issues arising in a Brexit deal or no-deal scenario.
While uncertainty still shrouds the UK regarding the timing and precise terms of its departure from Europe, in relation to EU immigration matters, there is some certainty in that the government has agreed with EU partners what it intends to implement in the event of a Brexit deal scenario. In addition, it has recently set out its policy on what it intends to enact in the event of a no-deal Brexit.
Pam Sidhu comments: “The issue at the heart of it all is that the EU right of free movement for European citizens, as we currently know it, will end on Brexit day (whichever date this will be). The main principles as to how this will occur have already been agreed with the EU, but in some respects are yet to be specifically transposed into UK immigration law and guidance.”
A deal scenario
The key principles agreed between the UK and EU are as follows: –
- The right to EU free movement, as we currently know it, will end on Brexit day.
- However, an implementation period will start from the date of Brexit to 31 December 2020, during which free movement of EU citizens and their family members will effectively continue. This means that EU citizens already in the UK by Brexit day, as well as any new EU citizens who enter the UK for the first time after Brexit day, will be able to continue living and working in the UK in accordance with EU law until 31 December 2020.
- EU citizens who have resided in the UK lawfully for five years by 31 December 2020 will be able to apply for “settled status” to stay indefinitely in the UK, under the EU Settlement Scheme. Such EU citizens will be able to continue to live and work in the UK and access public funds and services beyond the implementation period, and may go on to apply for British citizenship in due course.
- Those EU citizens with less than five years residence in the UK by 31 December 2020 will be able to apply for “pre-settled status” under the EU Settlement Scheme. These EU citizens will be granted a 5 year residence permit and could then continue living and working in the UK beyond 31 December 2020, until they acquire the requisite five year period for indefinite or settled status.
- The deadline for submitting applications by EU citizens for settled or pre-settled status under the EU Settlement Scheme is 30 June 2021 (which means such EU citizens can continue to live and work lawfully in the UK as normal until this date).Any failure by an EU citizen to meet this deadline will mean they are here illegally and will be subject to removal from the UK.
- British nationals residing in the EU will have similar reciprocal rights in the period up to 30 December 2020.
A no-deal scenario
In the event of a no-deal, the government’s intention, as announced in a public Home Office statement on 5 September 2019, is as follows: –
- EU free movement will end on Brexit day.
- EU citizens already in the UK before Brexit will be able to apply under the EU Settlement Scheme for pre-settled or settled status, but the deadline for applications will be 31 December 2020 (not 30 June 2021, as applies if there was a deal scenario).
- EU citizens who move to the UK for the first time after Brexit will be able to live and work in the usual way (as they do now) until 31 December 2020. If they wish to stay beyond 2020 they will need to apply for an immigration permission. One option for them is to apply for a new, voluntary 36 month temporary permission, called European Temporary Leave to Remain (Euro TLR) upon arrival into the UK. The application process is likely to be similar to that under the EU Settlement Scheme.
- Alternatively, any EU citizens moving to the UK after Brexit will need to apply for an immigration status, as do other non-EU citizens. The government has indicated it will introduce a new skills-based immigration system which will come into being from 1 January 2021.
New UK immigration system – 1 January 2021
It is difficult to precisely understand at present what the new immigration system in 2021 (when free movement will completely end) will be, as the Migration Advisory Committee has been commissioned to report on these issues and is currently consulting over a number of months. The Committee is due to present its findings to Government in January 2020. The government is likely to publish further proposals, probably in a white paper, during 2020. Current indications from the government are that all workers regardless of nationality will need to meet the same immigration requirements under a points based system, not too dissimilar to the system currently used for the influx of skilled non-EU nationals into the UK.
Pam comments: “The government has agreed a number of key principles as regards how EU free movement will end in the UK and these matters are expected to be the subject of new legislation and immigration rules in due course. Most immediately, businesses reliant on EU employees should ensure they understand the implications of the end of free movement rights under a Brexit and what measures can be put in place towards safeguarding EU nationals’ residence status and planning their workforce requirements for the future.”
If not done so already, EU citizens should take steps to preserve their residence status under the EU Settlement Scheme. Employers can direct staff to the EU Settlement Scheme, which is available online.
“In addition, the government has announced that there will be a new, level playing field for all foreign citizens (both EU and non-EU nationals) who apply to live in the UK from 2021, with the implementation of a new immigration system. This is a significant sea change for UK businesses who have to-date relied on easy access to EU labour. Businesses should consider how they intend to recruit European workers after 2020. The indications at present are the UK’s new skills-based system will depend upon sponsorship, although in a more liberal regime. Accordingly, it will be important for employers to obtain or maintain their current sponsor licences. Employers will also need to ensure they are carrying out appropriate right to work checks on workers in light of the changes. ”
We offer a range of advice for international clients regarding business immigration matters as well as a comprehensive suite of Employment services for both businesses and individuals.
We are looking to hold a series of workshops to discuss these issues in more detail. To register your interest in attending a workshop please send me an email and indicate any questions you are interested in having answered.