One of the few things that is becoming clearer amidst the Brexit fog is that a ‘no-deal’ is no longer a fanciful possibility. The UK Government, in its White Paper on Immigration Reform published at the end of last year, claimed the changes it proposed would lead to the most significant changes to immigration control in 45 years. However, that historic change, scheduled for December 2021, may come sooner than anticipated. If the UK leaves the European Union without a deal, then we can expect an even more dramatic overhaul of our immigration laws in just over a month’s time.
EU nationals in the UK before 29 March 2019
In the event of no deal, all EU nationals and their families resident in the UK by 29 March 2019 will be able to apply under the EU Settlement Scheme for either settled status (for those with five years continuous residence) or pre-settled status (for those with less than five years continuous residence). However, the scheme under a no-deal has been tweaked so it is less generous than it would be had a deal been reached. Under a no-deal scenario, the opportunity to join family members in the UK expires on 29 March 2022. If the Withdrawal Agreement is ratified by the UK Parliament then there will be no cut-off period. In addition, if there is a deal, EU nationals have a six-month grace period after the end of the implementation period, i.e. until 30 June 2021, to apply for either Settled or Pre-Settled Status. If there is no deal, then applications must be made by 31 December 2020.
What about EU nationals who come to the UK on 30 March 2019 and beyond?
The fundamental significance of a no deal is that the EU Settlement Scheme and the attractive route that this provides is only open to those EU nationals and their families who are actually in the UK on 29 March 2019. What happens to those who arrive in the UK after this date?
In the last few weeks, the government has revealed that all EU nationals will be given a three-month right to enter the UK. During this period, EU nationals will be able to live and work in the UK without restriction. EU nationals seeking to remain longer than three months must apply for a visa under a new route: European Temporary Leave to Remain. Before this visa expires, EU nationals will need to switch to another as-yet-unspecified route under a new immigration system (if they are eligible to do so) or leave the country. The UK Government has yet to provide details of this new route, the fee attached, and how it will operate practically.
To add to the confusion, in the event of no deal EU nationals in the UK will have the choice of two different immigration routes and will have at least five different legitimate immigration statuses. Those EU nationals resident in the UK prior to 29 March 2019 will be on a free and secure path to settled status. Those who enter the UK after 30 March 2019 will have only a three-month right to remain, beyond which they will have to apply for a new form of status, the terrain of which is unknown.
The UK Government has sought to reassure employers by re-iterating its position that employers will be able to rely on EU passports and identity cards to prove EU staff’s right to work until the new immigration system is introduced in December 2021.
The difficulty with the government’s approach is that it apparently ignores the fact that under UK immigration law it is a criminal offence to employ someone who the employer has “reasonable cause to believe” has no immigration permission to work. In amongst this quagmire, there are at least four obvious and likely not uncommon scenarios that employers may face where:
- an EU national has forgotten to apply for European Temporary Leave to Remain prior to the expiry of the three-month period;
- an existing EU national employee fails to apply under the Settlement Scheme by the deadline;
- an EU national has apparently obtained pre-settled status, however they have left the UK and this leave has legally lapsed (leave will lapse after two years); or
- a potential EU employee refuses to say when they entered the UK
All four scenarios will place an employer in an invidious position and the government should take urgent steps to amend the criminal law.
For businesses, now is the time to be auditing your immediate recruitment plans. If you are planning to employ any EU nationals after 29 March 2019, you may either wish to bring those plans forward, or at least advise new recruits to come to the UK and make an EU Settlement Scheme application before then.
It is entirely possible and very sensible for an EU national to travel to the UK and make their online application. If they are not yet ready to move permanently, then they can leave the UK while their application is being processed. It is worth noting, however, that in order to complete the identity section of the application, an individual must either have access to an Android device with near field communication (NCF) or attend a location to have their biometric ID document scanned. Further details are listed here: ID document scanner locations
Although this may appear a bit of a rigmarole, it is better for an employee to be on the EU Settlement scheme than face the much less certain and costly terrain of a potential three-year visa under the European Temporary Leave to Remain followed by the further uncertainty of securing a visa under the new immigration system. It will not only save the employee money and aggravation, but will also have fewer resource implications for the employer as, beyond the three-year route, Sponsorship is likely to be required.
If you are an individual living in the EU or you have friends or family members in this position, then again it is recommended that you consider coming to the UK to make an application under the EU Settled Status scheme prior to 29 March 2019. That way you can secure settled status under the EU Settlement Scheme as opposed to the UK domestic immigration system with the added bureaucracy and costs that this entails.
The Immigration Team at Shepherd and Wedderburn have been assisting a large number of impacted individuals and businesses on the implications of Brexit. To find out more, please contact Jacqueline Moore or Blair Melville.