Across our team we have received a number of queries from clients understandably concerned about their EU workers’ futures should there be a no deal Brexit.
Contradictory statements from ministers regarding the government’s future plans have not helped; nor has the absence of a ‘plan B’ should Parliament vote down Mrs May’s deal.
Much remains unclear. We set out below the current position, and our thoughts on what the future might look like but this should not be read as legal advice, and for immigration advice an immigration expert should be consulted.
The Withdrawal Agreement
The draft Withdrawal Agreement agreed with EU leaders on 25 November 2018 is currently the only deal on the table. We therefore recommend that our clients consider its possible implications on their workforce.
In the short term, the draft Withdrawal Agreement protects the existing EU residence and social security rights of EU citizens currently in the UK. These protected individuals can continue to exercise their rights derived from EU law in the UK, for the rest of their lives, where those rights are based on life choices made before the end of the transition period (envisaged to end 31 December 2020). This includes the right to live, work or study in the UK, as well as healthcare, pension and other social security benefits.
Broadly, the draft Withdrawal Agreement protects those EU citizens who are residing in the UK by and at the end of the transition period, where such residence is in accordance with EU law on free movement. The draft Withdrawal Agreement also protects the rights of certain family members who do not yet live in the UK to join them in the future.
The substantive conditions of residence are and will remain the same as those under current EU law on free movement. Notably, the draft Withdrawal Agreement allows an EU national and their protected family members to claim permanent residence in the UK after five years of residence (referred to as ‘settled status’), provided that residence begins before the end of the transition period and subject to other conditions that already apply under EU law. Those whose residence commenced before the end of the transition period but does not yet total five years, and protected family members lawfully joining EU citizens during or after the transition period, will be able to apply for ‘pre-settled’ status (which gives certain rights including the right to work in the UK and access the NHS), and will be able to apply for settled status once they reach five years' residence provided they meet the applicable requirements. The UK government has announced that it will introduce a registration scheme.
Please refer to our previous Law Now for more information on the proposed settlement scheme for EU nationals in the UK. Should Brexit go ahead, and the settlement scheme be approved by Parliament, this scheme will govern how EU nationals who are in the UK before 31 December 2020 prove their rights. If one of your employees cannot automatically prove continuous residence by virtue of a check on their National Insurance number, you may be able to assist them to provide further documentation (such as a confirmatory letter or payslips) in support of their application. It is important for your employees to obtain settled or pre-settled status in order to continue living and working in the UK. They must apply before 30 June 2021 in order to be considered.
If you have existing EU employees or future recruits you want to relocate to the UK, you should ensure they are here before the end of the transition period. You might also want to consider the position of EU employees currently in the UK before asking them to leave for a post elsewhere, because this could affect their and their family’s ability to apply for settled status in the UK.
We are aware of some employers who have set up a helpline for employees who are concerned about their future or have offered to pay for applications for settled/pre-settled status. There is no legal obligation for employers to do so.
If the Withdrawal Agreement is passed, the key point to note is that the government’s stated intention is to “take back control of our borders, by putting an end to the free movement of people once and for all”. In the longer term once the transition period has ended, the UK will be able to implement a new immigration system for EU citizens. The government has stated its intention to introduce a skills-based immigration system, without special treatment for EU citizens entering the UK on or after 1 January 2021 or, if later, the date on which the transition period ends.
If there is “no deal”
If the draft Withdrawal Agreement is rejected, the default position is that the UK will exit the European Union with no deal at 11pm on 29 March 2019. Primary legislation would need to be enacted to change that.
The expectation has always been that citizens’ rights to stay in the UK would be protected in a no deal scenario.
The prime minister has made repeated assurances that citizens’ rights will be protected, including on 21 September 2018 the following statement:
“I want to be clear with you, that even in the event of a no deal, your rights will be protected. You are our friends, our neighbours, our colleagues, we want you to stay.”
On 6 December 2018 the Department for Exiting the EU produced a policy paper setting out the proposals for EU citizens' rights in a no deal scenario. It is broadly based on the draft Withdrawal Agreement, though many of the relevant timelines have been shortened. For example, EU citizens would need to be resident in the UK by 29 March 2019 to apply for settled or pre-settled status rather than the end of any transition period, and would need to apply under the settlement scheme by 31 December 2020 (instead of 31 June 2021). The timelines for EU citizens' family members to join them in the UK would also be shortened. There would be no appeal in respect of immigration decisions to the European Court of Justice. In the event that no deal looks more likely, we would recommend that key EU personnel are therefore moved to the UK prior to 29 March 2019, wherever possible, and that they are encouraged to apply for settled or pre-settled status in good time.
It also seems likely that in the future employers will be required to undertake more rigorous checks on EU citizens’ rights to work in the UK. This would be directed at when the individual arrived in the UK, and therefore what rights they are purporting to exercise.
Rights for citizens of Norway, Iceland, Liechtenstein and Switzerland are still being negotiated, and are likely to take a back seat in the event of no deal.
The proposals were obviously only written recently, no doubt because the government has been focusing on Mrs May’s deal, and some aspects (such as healthcare and social security benefits entitlements) are unclear pending agreement with the EU. However, the key message is don’t delay; if you have identified EU nationals you want working in the UK, move them here before 29 March 2019.
Please note that a further Law Now update regarding the potential impact Brexit will have on employment law rights will follow.
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