With the threat of a ‘no deal’ Brexit becoming ever more possible, where are we with the migrant status of EU nationals already in the UK and those who have yet to arrive?
As the Government struggles to come up with a viable alternative to the defeated Withdrawal Agreement, a threat of a ‘no deal’ Brexit is becoming more real and a scenario that the Government is now spending much time preparing for.
The Withdrawal Agreement and EU Settlement Scheme
The EU Settlement Scheme was announced in June 2018, implementing the principles of the Withdrawal Agreement. The Scheme is to replace the previous Residence and Permanent Residence cards system. In some respects, it is expected to be potentially an easier Scheme since it focuses on proving the residence of the EU National as opposed to proving that the EU National has been exercising Treaty Rights.
The Scheme, which went live on 21 January 2019, (and will be fully open by 20 March 2019) introduced two types of status: settled and pre-settled. Settled status is to be granted, if the applicant has completed a continuous period of 5 years of residence in the UK. Anyone who started living in the UK by 31 December 2020 will be able to apply for settled or pre-settled status to secure their right to remain in the UK. The actual deadline for applications is to be 30 June 2021, which is the Government’s gesture of goodwill giving the affected EU nationals slightly more time to secure their status.
The application process is meant to be very user-friendly, with a short online application and phone app introduced for scanning applicants’ passports and faces. The Home Office will also obtain the requisite data directly from other agencies and only if records prove insufficient will applicants be required to submit evidence proving their residence in the UK. The proof of status will be available online as opposed to the Home Office issuing hard copy documents as has been its practice to date.
As we know, the Withdrawal Agreement was defeated in Parliament and as such ‘no deal’ seems to have become a possibility, despite the Government’s assurances. In anticipation of the defeat, a policy paper was published by the Secretary of State for Exiting the EU setting out the position in the event of a ‘no deal’.
Although, the Government confirmed the EU Settlement Scheme will continue, the policy paper provides for some ‘necessary’ changes. In summary, the generous concessions of the Withdrawal Agreement are removed. The Government would only guarantee the rights of EU nationals as long as they arrive in the UK on or before 29 March 2019. The free movement would end immediately after that date. The deadline for EU settlement applications would be the end of 2020, with no grace period.
EU nationals arriving after 29 March 2019
Although, the Government reiterated its commitment to ending free movement, it also recognised that the disruption to business should be minimised. With that in mind, transitional arrangements applying only to those EU nationals arriving after 29 March were announced on 28 January 2019.
This was a welcome announcement, as so far there was little clarity regarding what status would the EU nationals arriving after March actually have. The main points of the policy, which is still subject to the necessary parliamentary approval, can be summarised as follows:
- EU nationals will continue to be able to enter the UK using passports or national ID cards, also via e-gates where applicable
- They will not be required to apply for a visa prior to the arrival, but will be granted leave to enter automatically. This leave will allow them to stay for up to 3 months, working or studying should they wish
- Those who would like to stay beyond 3 months will need to apply for European Temporary Leave to Remain for a further 3 years – this status will not be extendable and will not lead to settlement under the EU Settlement Scheme.
What this means for employers…
As mentioned, some further clarity on the EU nationals’ position in the UK is a welcome development. However, as we have not seen much detail regarding the new immigration system to be introduced in 2021 following the transitional arrangements, it offers little comfort for those who might be considering coming to the UK after 29 March 2019. As we can imagine, some individuals may be reasonably anxious as to whether they would qualify for a visa under the new system, which can make recruitment more challenging.
On a more positive note, the Government seems to recognise that post-Brexit there will be, in effect, two categories of EU nationals; those arriving before and after the Brexit date. From a practical perspective, it would be difficult for employers to evidence when the person arrived in the UK. Further, due to the transitional arrangements, EU nationals will have until the end of 2020 or possibly longer to apply under the Settlement Scheme, which could create further uncertainty as to what documents employers should accept as evidence of right to work.
Fortunately, the Government is proving sympathetic towards businesses in this regards and it has been confirmed that employers will not be expected to distinguish between different categories of EU residents. Consequently, EU passports and national ID cards are to continue to be accepted as evidence of right to work, until the new immigration system is introduced in 2021.
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