Immigration update for a no-deal Brexit  

The UK government has published updated arrangements on the immigration status of EU nationals who wish to live and work in the UK in the event of a no-deal Brexit (September arrangements). These replace the previous arrangements published in January 2019 and are provided in advance of the anticipated announcement of the UK’s post-Brexit immigration system in 2020, following the conclusion of the Migration Advisory Committee’s study of comparative immigration systems (future immigration rules).

The updated arrangements will apply to all EU nationals and citizens of Iceland, Liechtenstein, Norway and Switzerland (EU nationals). The only exception is for Irish nationals, who will continue to enjoy freedom of movement within the UK.

It is now common knowledge that EU nationals currently residing in the UK must apply for settled status to obtain appropriate immigration status to remain in the UK after the end of freedom of movement. The September arrangements clarify that in the event of a no-deal Brexit, EU nationals must apply for status under the EU Settlement Scheme by 31 December 2020. This is six months earlier than the application date of 30 June 2021 if the UK leaves with a deal.

Until 31 December 2020, EU nationals and their family members will be able to reside and work in the UK without change. To remain in the UK from 1 January 2021 onwards, they must obtain permission to remain in the UK. Without this, EU nationals must leave the UK.

EU nationals moving to the UK after a no-deal Brexit may apply to the voluntary European Temporary Leave to Remain (ETR) scheme, which grants successful applicants leave to reside, work and study in the UK for 36 months. Obtaining ETR status is attractive for EU nationals who envisage a long-term stay in the UK, as time spent in the UK with this status will count towards the qualifying period for settlement (indefinite leave to remain) for EU nationals who meet the wider settlement requirements in the future immigration rules. The ETR scheme also allows EU nationals who will not meet those requirements to reside in the UK beyond 31 December 2020, albeit for a maximum of 36 months.

From 1 January 2021, employers must ensure that EU nationals have the right to work in the UK before their employment commences. An EU passport or national identity card will no longer represent sufficient evidence of this right.

EU nationals who do not have ETR status or leave to remain under the future immigration rules are liable for enforcement action, including detention and removal from the UK.

The impact of a no-deal Brexit should be factored into your short and medium-term workforce planning. Over the next month and during any transition period, EU nationals who wish to remain in the UK should apply for settled status. In the medium term, recruiting EU nationals will almost certainly involve the same considerations currently faced when hiring non-EU nationals, such as sponsorship, application fees and surcharges and an additional administrative workload.

It would be prudent for businesses with a significant percentage of EU nationals in their workforce to provide support and guidance to employees affected by the September arrangements and future immigration rules. Employers should put appropriate strategies in place to deal with the potential for workforce volatility, which may result in EU nationals departing the UK and will reduce their capability to recruit candidates from outside the UK and Republic of Ireland.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.