Immigration update: Brexit – what is the position for EU nationals in the event of a no-deal Brexit?

26 November 2018

On 25 November 2018, EU leaders formally accepted the terms of the UK’s withdrawal from the EU and the political declaration for a post Brexit trade agreement between the EU and the UK. The Prime Minister, Theresa May, will now need to persuade the British Parliament to accept the deal which has been negotiated, during a vote which is due to take place in mid-December.

Whilst the Prime Minister embarks on her country-wide publicity campaign this week to garner support for the agreement from the British public, now would be an appropriate moment to reflect on the implications for EU citizens living in the UK, in the event of a worst case scenario, with the UK crashing out of the EU on 29 March 2019 without a deal.

Under the terms of the Withdrawal Agreement, provision has been made for EU citizens living in the UK to obtain settled status in the UK or limited leave to remain under the EU Settlement Scheme, which now forms part of the Immigration Rules. EU citizens, including those arriving after Brexit day,  will have until 30 June 2021 to apply for this new status during a transition period, which will run from 30 March 2019 until 31 December 2020. Under the terms of the Withdrawal Agreement, EU citizens and their family members will be able to continue to come to the UK to live and work under the specified provisions throughout the transition period.

Although there have been various assurances issued from the Home Office press office that the EU Settlement Scheme will remain in place in the event of a no deal Brexit, there still has been no formal confirmation of this. Whilst the on-going rights of EU nationals currently living in the UK to continue to live in the UK post-Brexit is more certain (the Prime Minister has stated on numerous occasions that they will not be forced to leave the UK following Brexit day), it is still unclear what the position will be for new EU arrivals into the UK after Brexit, in the event of a no deal scenario. The government has remained completely silent on whether or not the EU Settlement Scheme will remain in its current format, or whether it will only apply to EU citizens living in the UK up to Brexit day.

This all begs a number of questions for employers, who firstly need to know whether they can continue to recruit EU nationals arriving in the UK after Brexit day and if so, on what terms, and secondly, how are they going to be able to differentiate between those who arrived before and those who arrived after Brexit, when conducting right to work checks.

So what will happen to EU nationals living in the UK if the Withdrawal Agreement is rejected by Parliament?

Information on this issue was first gained during the questioning of the Immigration Minister Caroline Nokes, when she was called to address the Home Affairs Select Committee on 30 October on this very point.

The Minister did nothing to appease employers concerns since she would not confirm that employers would not have to differentiate between EU nationals arriving pre and post Brexit, was particularly vague about whether there would still be a transition period and if so, how long this would last. More specifically, the Minister stated that the Immigration Bill due to be published later this year would be brought forward and also suggested that a registration scheme for new arrivals could be introduced for those wishing to stay more than three months.

Unsurprisingly, this received a great deal of press coverage due in no small part to the uncertain position this would leave employers. There swiftly followed an announcement by Hilary Bagshaw of the Home Office who stated that following Brexit, citizens will continue to be able to evidence their right to work by showing a passport or national identity card. So this provided some clarity for employers conducting right to work checks and was subsequently confirmed by the Home Secretary, Sajid Javid during an interview.

But what about free movement? Ms Bagshaw went on to say that free movement will end when we leave the EU, however, most observers believe that until the new immigration system is rolled out following the publication of the Immigration Bill, the most likely scenario is that free movement will effectively continue in all but name. Mr Javid also made a vague reference to the need for a sensible transition period, but would not specifically confirm that the status quo would be maintained until 30 December 2020.

Increase in the Immigration Health Surcharge

We previously wrote to you about the proposed doubling of the Immigration Health surcharge. By way of a further update on this, on 21 November the House of Commons approved an order to double the immigration health surcharge on every non-EU migrant from £200 to £400 a year. We understand this is likely to come into force at some point in December.

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