Deal or no-deal – the EU immigration dilemma

With 29 March 2019 rapidly approaching, and without any significant developments as regards the Withdrawal Agreement, the government is now accelerating its plans for a no-deal Brexit.

One of the key practical and pressing concerns in the event of a no-deal scenario is the position and status of EU citizens currently living and working within the UK and the possible recruitment issues post Brexit for those industries and businesses who rely heavily on EU workers, such as the hospitality, retail and construction sectors. Whilst the Withdrawal Agreement preserves free movement for the transition period (the period between 30 March 2019 to 31 December 2020), without a deal there is no transition period and free movement could potentially instantly cease to apply with effect from 11pm on 29 March 2019.

However, on 28 January 2019, Sajid Javid, confirmed the following would apply to EU citizens (and those from Switzerland, Norway, Iceland and Liechtenstein) in the event of a no-deal Brexit:

• All EU citizens currently residing in the UK will be permitted to stay, whether or not a deal is reached – their rights to live and work in the UK will be protected by the proposed EU Settlement Scheme and they will therefore need to apply for EU settled or pre-settled status prior to 31 December 2020.
• For EU citizens coming to the UK post Brexit, time-limited transitional arrangements will be put in place until such time as the new skills based immigration system is formally launched in 2021. These measures include:
  • Those EU citizens wishing to travel to the UK for leisure, work or study will be able to do so as they do now without charge – using e-gates when travelling on a biometric passport - but for a period of three months only.
  • Should an EU citizen wish to stay for a period of longer than 3 months, they will need to apply for European Temporary Leave to Remain. This application will involve a charge (the amount of which is yet to be confirmed) and will require identity, criminality and security checks. If approved, the applicant will be entitled to remain in the UK for a period of three years.
  • Following the expiry of the Temporary Leave to Remain period, the individual must either leave the UK or apply to remain under the visa requirements applicable at that time; it will not be possible to extend the temporary leave to remain period, nor will it count towards EU settled status, permanent residence or indefinite leave to remain.
  • Non-EU family members who wish to accompany an EU citizen with European Temporary Leave to Remain, will be required to apply for a family permit in advance of travelling to the UK.
• Helpfully, notwithstanding the above, employers are not expected to differentiate between EU citizens who arrived before Brexit with those who arrived after, and can continue to complete right to work checks based solely on an individual's passport or national ID card up until 2021. Following this time however, employers will need to check EU citizens' status (i.e. whether they have settled status, pre-settled status or European Temporary Leave to Remain, using the Home Office's Digital Status Checker), but this will not apply retrospectively.
• Irish citizens will continue to enjoy the right to enter and live in the UK as they do now, under the Common Travel Area arrangements.

Whilst it is therefore encouraging to at least see some plans being put in place, the proposals do give rise to issues for those employers who rely heavily on an EU workforce. For example, the European Temporary Leave to Remain system provides only for a three year period and doesn't therefore aid longer-term recruitment. In addition the level of the fee associated with the application and the practical process requirements (for example whether an applicant's physical presence will be required in order to process the application as with non-EU citizens) remain unknown and may act as a significant deterrent for UK employers and EU candidates alike. Moreover, a no-deal Brexit may have a more subtle and significant impact on recruitment should the lack of any real trading regulations materially impact the general economic status of the UK, making the UK a less attractive option for EU nationals.

We would therefore recommend that employers take preliminary steps to ensure as far as possible that they are ready for the people strategy aspects of a no deal eventuality and that they are aware of the immigration requirements set out above. Policies and recruitment strategies should be reviewed and revisited, to ensure compliance with the proposals and to avoid disruption to the workforce. Due to the proposed immigration system being heavily skills based, it may also be worth considering if and how this will affect your staffing structure and whether now may be the time to invest in training programmes and/or apprenticeships or alternatively to become a sponsor for non-EU migrants.

UK nationals in the EU

What unfortunately remains uncertain is the status of UK citizens currently living and working in EU countries. A number of EU members, including the Czech Republic, France, Germany, the Netherlands and Sweden have all published guidance for British citizens resident in their country in the event of a no-deal Brexit, however a large number (including Spain (where a considerable number of British citizens reside)) are still to confirm the position. Accordingly, employers should ensure that any of its employees who are living and working in the EU are aware of both the relevant local immigration provisions and any applicable deadlines/grace periods for making a residence application. Any British citizens who have lived in other EU countries for five years have the right under the Citizens Directive to apply for confirmation of Permanent Residence and it would be advisable for such applications to be made sooner rather than later.

Whilst this article reflects the position at the time of writing, the position around the likelihood and impact of a no deal Brexit is regularly changing. To keep up to date with developments we recommend looking here. If you have any questions on how this impacts your work force, please speak to Karen Bates - [email protected] or Nathalie Ingles - [email protected].