The Government has recently confirmed that in a ‘no-deal’ Brexit scenario free movement will end on 31 October 2019. This is a statement of fact. However, the Government has also indicated that the ‘no-deal’ transitional provisions proposed by the May Government for EU nationals entering the UK from 1 November 2019 (ie, after Brexit date) will not be implemented. These proposals effectively provided for free movement for stays in the UK of up three months and a new streamlined visa system (called European Temporary Leave to Remain (ETLR)) for stays of more than three months, to apply until 31 December 2020.
Rather unhelpfully, there is no clarity at this stage on the detail of any alternative arrangements. This may be a case of ‘window dressing’ on the part of a Government engaged in a political PR campaign at home and an attempted renegotiation with the EU. Freedom of movement will end on 31 October 2019, but the question is what alternative system will be implemented from 1 November 2019.
It seems likely that relatively straightforward transitional arrangements will need to be implemented, given the short time-frame and practicalities of dealing with entry clearance for EU nationals and their family members from 1 November 2019 and the complexities of introducing new immigration rules. Failure to do so is likely to result in considerable disruption at the border and for businesses and public services.
The Government is expected to publish further details shortly. These may prove to be similar to the ETLR system devised by the May government.
Our advice at this stage is as follows:
- Reassurance – provide reassurance to EU staff already in the UK (ie, resident before 31 October 2019), some of whom may be unsettled by recent developments. The Government has confirmed the EU Settlement Scheme will still apply to them in a no-deal scenario, enabling them to remain in the UK on a long-term and largely unrestricted basis.
- EU Settlement Scheme applications - it would be sensible for EU nationals and their family members who have not applied under the Scheme to do so prior to 31 October 2019, notwithstanding that the ‘no-deal’ deadline for applications would be 31 December 2020. This means they will be ‘in the system’ which may help on entry clearance in a no-deal scenario (ie, evidencing they were resident in the UK before 31 October 2019 and have the right to enter / reside on this basis).
- Travel - if practicable and pending further developments, it may be sensible for EU nationals not to arrange overseas travel over the Brexit date in order to minimise the risk of them being caught up in difficulties at the border in a no-deal scenario.
- Recruitment procedures - it is not necessary to make any amendments to recruitment / right to work policies and procedures at this time. To date, the Government’s position has been that right to work check requirements will not immediately change following Brexit (eg, it will not be necessary to distinguish between pre and post Brexit arrivals) and will not do so until 1 January 2021. As and when the Government issues clear policy guidance to the contrary, appropriate changes can be made.
- Recruitment timing - where EU nationals are in the recruitment pipeline it would be sensible to try to progress matters so they are resident and working in the UK on or before 31 October 2019. This would mean they would be covered by the EU Settlement Scheme, rather than the new rules that will apply from 1 November 2019.
Our specialist immigration team is on hand to provide advice and support, including running briefing and Q&A sessions for EU staff. Please contact Alex Russell for further details.