Planning for a no-deal Brexit: an update on the immigration implications

The Government has recently issued updated guidance which provides some clarity on the position of EU nationals in a ‘no deal' Brexit scenario. The key points are as follows:

  • EU Settlement Scheme - EU nationals who are resident in the UK by 11pm on 31 October 2019 will be covered by the EU Settlement Scheme. This will run whether there is a ‘deal' or ‘no-deal' Brexit, meaning the right of residence and ability to access benefits and public services should be preserved. The deadline for applications will be 31 December 2020 (in a no-deal scenario) or 30 June 2021 (in a ‘deal' scenario).
  • Euro TLR - EU nationals who are not resident in the UK on or before 31 October 2019 will continue to be able to enter the UK freely (ie, without needing a visa) to live and work from the date the UK leaves the EU until 31 December 2020. However, a person who moves to the UK after a ‘no-deal' exit and wishes to remain resident beyond 31 December 2020 will need to apply under the new European temporary leave to remain scheme (Euro TLR). It appears that the deadline for Euro TLR applications will be 31 December 2020, irrespective of the date when the person entered the UK after exit. Euro TLR will grant the holder permission to remain in the UK for 36 months with the ability to study and work. At the end of this period, holders of Euro TLR will need to apply for further permission to remain in the UK under the new immigration system (expected to be implemented from January 2021). Details of the new immigration rules and any switching requirements are not expected to be published for several months. However, the Government has indicated that time spent in the UK with Euro TLR status will count towards residency requirements for future indefinite leave to remain/settlement applications.
  • Frontier workers – there have been developments in respect of EU nationals who live in another EU country, but regularly travel to the UK in order work for a UK employer (often referred to as frontier workers). There should be no change to their ability to enter the UK and work until 31 December 2020. From 1 January 2021, the Government will be implementing a new ‘frontier worker permit' to enable these individuals to continue to enter the UK for work purposes, although very limited details have been published to date. These individuals may also be eligible to apply under the Settlement Scheme, but may only qualify for pre-settled status due to the number of absences from the UK.

Our advice at this stage is as follows:

  • Reassurance: provide reassurance to EU staff already in the UK and 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 may be sensible for EU nationals and their family members who have not applied under the Scheme to do so before 31 October 2019, notwithstanding the fact that the no-deal deadline for applications would be 31 December 2020. This means they will be "in the system" which may to evidence that they were resident in the UK before exit date.
  • 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). 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. 

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