Lisa Bryson, Partner, Employment and Immigration, Eversheds Sutherland
The last three and a bit years of Brexit discussion has been littered with buzz words and an obvious lack of substance. While Home Secretaries have come and gone, pledges to “end free movement” have endured. However, the new Home Secretary, Priti Patel has indicated that she intends to immediately end free movement to the UK of EEA citizens, in the event of a no deal Brexit. This has caused widespread and understandable alarm, not least for employers throughout the UK.
So, as we approach the intersection where actions eventually replace intentions, what is changing? A fact sheet produced by the Home Office has indicated some potential outcomes post-Brexit, but many questions remain unanswered. The following pointers are important for those most likely to be affected, in the intervening period.
The EU Settlement Scheme will continue, deal or no deal, for those resident in the UK prior to the Brexit date. EEA and Swiss citizens living in the UK by 31 October 2019 will have until at least 31 December 2020, to apply for settlement. Entry to the UK for these citizens, for work or pleasure, will not be impacted in the interim. Temporary relief, but for how long?
The European Temporary Leave to Remain scheme is likely to be abandoned. This scheme would have allowed EEA nationals arriving in the UK post-Brexit day to apply for permission to live, work or study for up to three years, as a transitional measure in the event of a no-deal Brexit. The Home Office position on this has shifted and now states that arrangements for people coming to the UK, for extended periods of work and study after Brexit day will ‘change’. What this change will entail remains unknown though, the forecast currently appears bleak. One thing is certain, employers require clarity now more than ever.
A new immigration system is to be announced, this new system will be effective from 31 October 2019, in the event of a no-deal Brexit. Many expected that in the event of a no-deal Brexit, there would be a sensible transition period. This has all changed. The Home Office are now tasked with implementing border restrictions from day one of a no-deal Brexit. How successful this will be is questionable with major political and legal barriers to be maneuvered ahead of 31 October.
The Home Office are yet to address how the right-to-work checks would be made on EEA citizens as part of this new system or how they intend to distinguish between EEA citizens who qualify for, but have yet to apply for settled status, and others. Uncertainty also exists for workers who have to cross the border and British citizens working abroad, who are likely to face reciprocal treatment.
Many employers believed that immigration arrangements post-Brexit had been resolved but an abrupt change of direction is clear. With the end of free movement now looming closer, employers who will be impacted by the proposed changes should pay close attention to immigration announcements and developments in the coming weeks.