On 19th August 2019 a spokesperson for the Home Office stated that Free movement will end on 31 October in the event of a no-deal Brexit. They stated that the government will introduce a new, fairer immigration system that prioritises skills and what people can contribute to the UK, rather than where they come from.
Boris Johnson has said that it doesn't mean that we are going to become hostile to immigration or to immigrants but that immigration will be democratically controlled and we will be producing an Australian-style points-based system.
The Home Office said that EU citizens and their families already living in the UK by Brexit would still have until the end of December 2020 to apply to the EU Settlement Scheme and that no one eligible for settled status would be barred from re-entering the UK when free movement ends.
Theresa May's government had proposed that in a no-deal scenario EU nationals would be able to continue to come and work in the UK after Brexit for up to three months, after which they would be able to apply for a 3-year temporary permission to remain and had acknowledged businesses desire for certainty. They had stated that EU nationals would not have to undergo checks at the border post Brexit and would be able to continue to use the e-gates as they currently do. Further, it was not intended under Theresa May's government that employers would need to carry out any additional right to work checks on EU nationals before January 2021 when the new immigration system was to be phased in.
Reports say that the Immigration Bill has been shelved out of concern that pro-remain Tory MPs will hi-jack it to stop a no-deal exit. The government has been warned by the Home Office that attempts to end free movement overnight after a no-deal Brexit could result in another Windrush scandal. It is not clear whether Boris Johnson proposes that checks will be completed on EU nationals at the border post Brexit and if so, there is no indication as to what documents would be accepted as proof that the person is eligible to apply under the EU Settlement Scheme and can be readmitted on this basis.
Employers have a legal obligation to check the right to work of all UK employees and are subject to civil penalties of up to £20,000 per illegal worker and can be prosecuted for the criminal offence of having reasonable cause to believe that they are employing an illegal worker. Employers taking on new hires after Brexit would struggle to ascertain whether the person is eligible to apply under the EU Settlement Scheme and can work lawfully in the UK following a no-deal scenario and it would be difficult to compile a list of documents which would lawfully be accepted as proof of the right to work for EU nationals. If the proposals go ahead, the burden would be on the employer to obtain documents to satisfy themselves that the person they wish to employ is eligible for pre-settled or settled status. This would involve them having to second guess Home Office caseworkers and could leave the employer in a precarious position if they make an error in their interpretation of the EU Settlement Scheme rules.
There are approximately 2 million EU nationals in the UK who are yet to apply for settled or pre-settled status and it is not feasible for them all to apply prior to 31 October 2019.
There is speculation that this hard line approach is posturing on the part of the government in an attempt to secure a revised withdrawal deal with the EU. If so, given the terrible and preventable human cost of the Windrush scandal and some EU nationals voluntarily departing the UK leaving skills gaps, it is perilous and reprehensible for the government to put citizens' rights at risk for political gain. If the proposals are implemented, there is highly likely to be a knock-on impact on the hiring pipeline of businesses already battling uncertain future trading and regulatory positions.
Employers may wish to bring forward new hires of EU nationals to the UK to arrive before 31 October 2019 to avoid any potential issues or delays. Similarly, EU employers hiring UK nationals in the EU may wish to consider bringing forward their new hires to arrive before 31 October 2019. In some EU countries it is possible that UK nationals would need to have registered in that country before 31 October 2019 to benefit from free movement. There is no indication of how employers recruiting EU nationals after 31 October 2019 will be able to sponsor them.
The writer wonders whether, in announcing an Australian-style points based system, the PM is aware that a points based system has been in place since November 2008, has attracted a great deal of criticism and was due to undergo a radical overhaul involving detailed engagement with stakeholders, and awaits the unveiling of his new vision.
Conclusion
Whilst the government has made some small effort to reassure, explaining that EU nationals already here before Brexit can still apply before December 2020, the government has overlooked the potentially serious impact on EU nationals and their employers. Employers and EU nationals may wish to bring any relocation plans forward, whether relocating EU national employees to the UK or UK national employees to the EU. Otherwise we will wait to see what further negotiations and a possible general election could bring. Click here for the Home Office's fact sheet. If you have any questions please contact Gillian McKearney.