Free movement for EU citizens after Brexit?
The Government’s announcement that free movement of EU Citizens will end the day after a no-deal exit on 31 October 2019 is actually nothing new.
In a no-deal situation, it was always the intention that EU citizens arriving in the UK for the first time after Brexit day would be subject to a new regime.
However, what exactly that new regime will be remains far from clear….
What will happen if there is a no-deal Brexit?
Under Theresa May’s government, a transition plan was published in January 2019 which stated that EU citizens arriving post-Brexit would be able to stay for a 3 month period and then apply for European Temporary Leave to Remain, allowing them to stay for up to 3 years.
In terms of employment checks (because it would be difficult for employers to distinguish between those arriving post-Brexit and those already here who had not yet registered under the EU settlement scheme) no changes were proposed until 2021. Until then, employers would continue to check the “right to work” documents in the same way they had always been required to.
However, there is speculation that this new announcement could mean that a completely new transition scheme is being proposed. Or it could simply mean that the PM is alluding to the scheme already proposed.
A Home Office Factsheet has been hurriedly published stating “details of other changes immediately after 31 October and improvements to the previous government’s plans for a new immigration system are being developed and the government will set out its plans shortly.”
At this stage, there are no further details of this system available so further announcements are eagerly awaited.
What about EU citizens who arrive before Brexit?
EU citizens who arrive in the UK before Brexit will continue to have the right to live and work in the UK until 31 December 2020. After that, they will need to show that they have applied under the EU Settled Status Scheme and have settled (or pre-settled) status in order to be able to remain living and working in the UK.
For employers worried about their employees leaving their settled status applications to the last minute, or failing to apply at all and possibly missing the cut-off, they cannot be obliged to apply for settled status and it is not possible to make their continuing employment dependant on them doing so.
We do recommend however, that you regularly remind your employees to apply for settled status and warn them that if they do not do so before 31 December 2020 they will be working in the UK illegally.
The current lack of clarity on immigration policy is unhelpful. However, at this time, it is business as usual. Employers should avoid changing their recruitment policies or strategies or rejecting applications from EU citizens because of fear of the unknown. To do so may lead to claims of discrimination.
Right to work checks should continue to be made in the normal way and employees should continue to encourage those employees already in the UK to register under the EU Settlement Scheme as soon as possible and in any event before 31 December 2020.
We offer Brexit Workforce Planning advice and staff training and surgeries to help businesses prepare for the impact of Brexit.
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.