Free movement – the latest Brexit developments

The date of the UK's departure from the EU has been delayed once again to 31 January 2020. At the time of writing, uncertainty remains as to whether the UK will leave the EU with a deal or without one.

However, what we do know, regardless of whether the UK leaves the EU with or without a deal is that, for all EU, European Economic Area (EEA) and Swiss nationals living in the UK by 11pm on exit day, their rights to live and work in the UK will continue. Whilst employers may choose to communicate details of EU, EEA and Swiss citizens' rights post-Brexit and the process to apply for the EU Settlement Scheme – either in the form of pre-settled or settled status – the deadline to make this application is still some way off. For the avoidance of doubt, the deadline will be on or before 31 December 2020 in the event of a no deal and 30 June 2021 if a deal is agreed.

The latest statistics show that 1 in 3 EU nationals are still to apply for the EU Settlement Scheme. Please note that Irish citizens' rights are currently unaffected and they can continue to exercise their right to live and work in the UK as normal.

As mentioned in our September briefing, employers need to be aware that if the UK leaves the EU with no deal, some changes to free movement will happen straight after exit day. The government has confirmed that, in such a scenario, EU, EEA and Swiss nationals who arrive in the UK after 11pm on exit day will not be eligible to apply under the EU Settlement Scheme. As a result, those nationals will be subject to a transitional period, until 31 December 2020. During this time, EU, EEA and Swiss nationals will be able to live, work and study in the UK, as they do now, with no immediate change at the border. However, they will need to apply for a temporary status known as European Temporary Leave to Remain ("Euro TLR") before the end of 2020.

This will be an online application that is free of charge, and will ensure three years of lawful residence from the date it is granted. Importantly, the period spent under the Euro TLR status cannot be extended but can count towards settlement if the individual qualifies for settlement under the new rules in force from 2021. Of course, if the UK were to leave the EU with a deal, the transitional period will not be required and EU, EEA and Swiss nationals arriving in the UK until 31 December 2020 will be able to apply under the existing EU Settlement Scheme.

From 1 January 2021, whether the UK leaves the EU with or without a deal, all nationals who wish to come to the UK to work, apart from those who are British or have indefinite leave to remain, will be subject to a new immigration system which favours experience and talent over nationality.

It is at this time that the changes to right to work checks for employers will be triggered and employers will need to look at amending their processes as a result. More details on the new right to work checks are due to be announced shortly and we will keep you updated with these developments.

The government proposes that the new immigration scheme will be points-based and will be carefully calibrated to take into account different locations, industries and professions. We appreciate that employers are going to be understandably concerned about their future recruitment strategy and will wish to avoid as much disruption to their workforce as possible.

The Home Office also recognises this and has commissioned the Migration Advisory Committee ("MAC") to review the UK's future immigration system. In addition, the MAC have been tasked with carrying out an in depth analysis of future salary thresholds and the range at which they could be set. The MAC is currently seeking online evidence from any organisation that wishes to contribute their recruitment experiences and have "a voice" during this vital assessment period. If your business would like to contribute, please follow this link and you will receive an email with a link and password to access your online form. The deadline to submit your response is 9am on 5 November 2019.

Lastly, we must not forget to mention what the proposed plan is for UK nationals who are currently working in employers' offices, branches or sites within the EU, EEA or Switzerland. If a deal is agreed, the UK government have confirmed that there will be a reciprocal arrangement with the EU, EEA and Switzerland that free movement will continue until 31 December 2020. This means that there would be no change in a UK national's rights or status whilst working or travelling to the EU, EEA or Switzerland until after that date. However, if the UK leaves the EU with no deal, UK nationals will need to understand the specific immigration rules dependent on the country where they work and make sure that their professional qualifications are recognised by the relevant regulator in that country. In addition, in most instances UK nationals travelling to the EU after a no deal Brexit (whether for leisure or business purposes) will need at least 6 months left on their passport. For further government guidance to UK nationals travelling to the EU, EEA or Switzerland in a no deal scenario, please follow this link.

The above therefore may be subject to further change depending on the future political landscape. If you would like to discuss your businesses' future recruitment strategy and how Brexit will impact your workforce or would like to discuss any other aspect of this article please get in touch with me - [email protected] or 03303 116 793.

To help you understand how your employees might be affected by changing immigration rules - and what to do about it if they are - try our free Brexit migration questionnaire. References to EU nationals in this questionnaire include EU, EEA and Swiss nationals.