No-deal Brexit: EU nationals’ rights made clearer

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Amid the drama of MPs backing a proposal for Theresa May to renegotiate her deal, many may have missed the announcement that free movement will end in a no-deal scenario

In a somewhat low-key announcement home secretary Sajid Javid confirmed that if the UK leaves the EU without a deal on 29 March 2019 the government’s plan (under the current Immigration Bill) is that free movement will come to an end.

As a transitional measure he outlined that EU nationals will be able to enter the UK for a strictly limited three-month period – for any purpose, including work, study etc. If they want to stay in the UK longer they will need to make an application for a new category of visa called European Temporary Leave to Remain.

This visa will be valid for a three-year period. If EU nationals want to remain in the UK after this expires they will have to apply for a further visa, which if current proposals are adopted will need to fall within one of the tiers of the UK’s current points-based visa system.

The new provisions won’t apply to Irish citizens who will continue to have the right to enter and live in the UK under the Common Travel Area.

The statement leaves us with several key questions:

  • We have been told that the three month visa-free entry period will only be in place for a 'transitional period', but have had no indication of how long this will last for. Once this period expires the implication is that all EU nationals seeking to enter the UK could be required to hold a valid visa.
  • We understand that fees will be charged for the new European Temporary Leave to Remain visa, but as yet no further information has been provided. There is some speculation that fees could mirror other leave to remain visa applications, which would put them in the region of £500 to £600 per application. This remains a key area of uncertainty for businesses looking to plan ahead.
  • What will this mean for employers wanting to verify that an EU national has the right to work in the UK? How will they be required to navigate the changing status of EU nationals to ensure compliance?

This announcement may come as a surprise to employers. Previous information from the government had given the impression that there would be no immediate visa concerns for employers to worry about when recruiting EU nationals, even in the event of a no-deal Brexit.

Previous Home Office statements had confirmed that EU nationals would retain the right to work in the UK until at least December 2020 and had categorically confirmed that there would be no changes to right to work compliance checks until 1 January 2021. Clearly this is no longer accurate. Employers may have to react to new compliance challenges very quickly in the event of no deal.

So what can employers do now to prepare for a no-deal scenario?

1) The new visa requirements only apply to EU nationals who are entering the UK post-Brexit i.e. after 29 March 2019. Anyone here prior to this date will be eligible for the settled status scheme and will need to apply for and obtain settled or pre-settled status in line with the relevant deadline to ensure they retain the legal right to live and work in the UK.

There is clearly a role for employers in ensuring that individuals are aware of these requirements; albeit employers must be cautious not to stray into giving immigration advice that could potentially be unlawful.

2) Employers need to assess ongoing recruitment activities. Have you recruited individuals with start dates after 29 March 2019? If yes it would be well worth reviewing potential new starters to assess their nationality/right to work status. It's worth discussing whether it is feasible for any EU nationals to make sure they enter the UK before 29 March 2019.

3) Employers need to start looking at their immigration compliance – reviewing their policies, procedures and practices now will mean they are better prepared to adapt to rapid changes in the requirements and avoid the risk of illegal working (and the associated civil penalty of £20,000 per illegal worker or the criminal penalties of unlimited fines and a maximum of five years’ imprisonment).

We would strongly recommend taking professional advice on these issues now to ensure that you remain compliant and ready to respond to the challenges ahead.

Laura Darnley is an immigration specialist at HRC Law

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