Theresa May’s government, in its White Paper on Immigration Reform published at the end of last year, claimed the proposals it contained would lead to the “most significant changes to immigration control in 45 years”. It was anticipated that these changes would be brought into force by the end of December 2020.

Now that she has been replaced by Boris Johnson can we expect to see these historic changes implemented sooner that had previously been proposed?

The current direction of travel points strongly towards significant reform happening well before the end of December. If the Prime Minister’s Brexit policy results in a no-deal, which appears to be the most likely outcome, then we can expect the implementation of the changes proposed in the White Paper to begin in just over eight weeks’ time. 

This article will now look at how a no-deal Brexit will impact EU nationals and is based on the UK Government’s current published position.

In his first Commons Statement, Mr Johnson used the opportunity to make the following declaration about EU nationals: “I thank them for their contribution to our society and for their patience, and I can assure them that, under this Government, they will have the absolute certainty for the right to live and remain.”

While this was initially interpreted by some as meaning the Prime Minister intended to introduce new laws to safeguard the rights of EU citizens, his office quickly made clear that there were no such plans. The position below reflects the rules set down by the previous administration, which would appear, for the moment at least, to be the rules that will be followed.

EU nationals in the UK before 31 October 2019

In the event of no deal, all EU nationals and their families’ resident in the UK by 31 October 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 is a lot less generous than it might have been had a deal been reached with the EU. 

Under a no-deal scenario, the opportunity to join family members in the UK expires on 29 March 2022. If the much maligned Withdrawal Agreement (WA) is ratified by the UK Parliament then there will be no cut-off period. In addition, under the WA, 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. In the event of no deal, EU nationals only have until 31 December 2020 to apply.

What about EU nationals who come to the UK on 1 November 2019 and beyond?

The fundamental significance of a no-deal Brexit is that the EU Settlement Scheme and the relatively simple route that this provides will only be open to those EU nationals and their families who are physically in the UK by 31 October 2019. What happens to those who arrive in the UK after the Halloween deadline?

Under policy introduced by the previous administration, 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 into 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 or how it will work in practice.

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.

The previous Conservative administration had sought to reassure employers by reiterating its position that they 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 this approach is that it appears to ignore 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. To further complicate matters there are at least four obvious and likely not uncommon scenarios that employers may face where:

1. an EU national has forgotten to apply for European Temporary Leave to Remain prior to the expiry of the three-month period;

2. an existing EU national employee fails to apply under the Settlement Scheme by the deadline;

3. 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

4. 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 new government should take urgent steps to amend the criminal law.

Now is the time for businesses to be auditing their immediate recruitment plans. If a business is planning to employ any EU nationals after 31 October 2019, it 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. 

Individuals living in the EU, or those with friends or family members in this position, should consider coming to the UK to make an application under the EU Settled Status scheme prior to 31 October 2019. That way they can secure settled status under the EU Settlement Scheme as opposed to the UK domestic immigration system, with all the added bureaucracy and costs that this entails.

Shepherd and Wedderburn’s immigration team has been assisting a large number of individuals and businesses on the implications of Brexit over the last 12 months. If you are an SME and employ EU nationals, then you may qualify for this legal advice to be funded through the Brexit Support Grant. Immigration advice can include one-to-one sessions for EU staff, strategic HR support and assistance with Brexit communications.

For further information on the Brexit Support Grant or other immigration advice, contact Jacqueline Moore, our Head of Immigration, on 0131 473 5451 or at jacqueline.moore@shepwedd.com.

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