The Government published a white paper in December 2018, setting outside plans for the UK immigration system post-Brexit in the event we agreed a deal with the EU* (* as a result, these plans will not apply if a deal is not reached).
If we leave with a deal, it is intended that there will be an “Implementation” period from 29 March 2019 until 31 December 2020 during which EU citizens (and EEA citizens) will still be free to come to the UK to live and work.
EU citizens who wish to continue living and working in the UK after 31 December 2020 will have until 30 June 2021 to apply for “settled” or “pre-settled” status under the new EU settlement scheme, which will protect their right to live and work in the UK for five years, after which they can decide if they wish to renew their settlement application (or apply for British Citizenship, if applicable).
EU citizens arriving before or during the implementation period will continue to have the right to bring direct family members over to join them in the UK up until 29 March 2022, provided the relationship exists by 31 December 2019 and continues to exist at the date of the family member’s application.
Those EU citizens who already have permanent residence will need to swap to the settled status scheme (there will be no charge to do this) as their permanent residence document will no longer be valid proof of right to work after the Brexit implementation period has ended. However, those with Indefinite Leave to Remain will not need to swap across (although they can if they wish to) as this will remain valid.
Those EU citizens coming to the UK after 31 December 2020 will be subject to a new immigration system (see below).
No Deal - If we leave without a deal?
The Government published a policy paper in December 2018, setting out the position in the event of no deal.
It proposes that those EU citizens who can prove they were living in the UK as at 29 March 2019 will be able to remain in the UK and apply for “settled status”, but only up till 31 December 2020 (as opposed to June 2021 under the deal scenario set out above).
During this time, they will still have the right to live and work in the UK and will still be able to bring their family members over to live with them until 31 December 2020.
Until recently, it was unclear what would happen to those arriving after Brexit day on 29 March 2019. However, on 28 January 2019, the Home Secretary announced that transitional arrangements would apply so that EU citizens who arrived after 29 March 2019 and who wished to stay in the UK longer than 3 months will need to apply for temporary leave which will be valid for 3 years. They will be subject to identity, criminality and security checks. Those wishing to stay for longer than 3 years will have to apply under the new Immigration system from 2021.
A new Immigration System – 2021 onwards
The UK already operates a Points Based System (PBS) to regulate the entry of non-EU citizens who wish to come and work in the UK. This involves UK employers registering as sponsors for those they wish to employ.
From 2021 this will also apply to EU citizens, they will not receive any preferential status.
This means that all employers wishing to recruit from outside the UK will have to register as sponsors. Sponsorship under the PBS brings a number of hurdles for employers including:
A cap on the number of visas to 20,700 per year
A resident labour market test (a recruitment test to ensure the UK domestic labour market is not undercut); and
Minimum skills and salary criteria
The Government has proposed some concessions under the new immigration system to assist employers.
In particular, the removal of the cap and Resident Labour Market Test and lowering of the skills requirement to A-Level and equivalent qualification level.
It has also proposed a new short-term work visa – aimed at helping employers who are reliant on low-skilled workers from Europe to transition to the new system. This new route will be temporary and reviewed in 2025. It will provide a visa for up to 12 months, after this, the migrant must return to their home country for a 12 month “cooling off” period before they can apply again. While in the UK, they will not have to be sponsored or have a definite job offer but could not switch categories, bring dependents with them and/or acquire the right to settlement.
What should employers do now?
Register as a sponsor: If you are not already a sponsor you should register now to beat the rush. There are currently over 900,000 employers in the UK who will need to register under the new system.
If you are already a sponsor: Invest in compliance training - sponsorship brings with it strict onerous compliance and reporting obligations. Sponsorship can be revoked for non-compliance and employers can be banned from re-applying. Ensure you know your obligations.
Assist your existing staff with applications under the EU settlement scheme
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.