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Immigration in a No-Deal Brexit: What it means for Employers and Employees

The UK Government has published long awaited details of citizens' rights in the event of a 'no deal' Brexit ('the policy paper').

The UK Government has published long awaited details of citizens' rights in the event of a 'no deal' Brexit ('the policy paper'). With a 'no deal' scenario increasingly likely, it is worth analysing what this might mean.

The policy paper reassures EU nationals resident in the U.K. prior to 29 March 2019 that their status in the U.K. would be protected in a 'no deal' scenario, that is they will still be able to apply for status under the EU Settlement Scheme. There are no proposed changes to the process or requirements for applying under the EU Settlement Scheme other than the timeframes as outlined below.

Those in the U.K. for five continuous years can apply for settled status and those with less than five years' residence can apply for pre-settled status.

The policy paper states that EU nationals can continue to rely on their passport or national ID card as proof of their right to work until 31 December 2020.

However a number of the rights agreed on in the Draft Withdrawal Agreement (DWA) have been diminished. These are as follows:

  • Applications for settled status (and pre-settled status) from EU nationals in the U.K. will only be accepted until 31 December 2020. The DWA cut-off for applications is 30 June 2021.
  • There will be no right of appeal under the EU Settlement Scheme.
  • Free movement will continue until 31 December 2020 however those arriving during the transition period (after 29 March 2019 and by 31 December 2020) will not have their rights guaranteed when the new immigration rules come in on 1 January 2021 and they may be required to apply under the new rules. The DWA grants those arriving during the transition period the same rights to apply for pre-settled status as those here before 29 March 2019.
  • Family members of EU nationals here before 29 March 2019 and where the relationship existed at that date (or children born overseas after this date) must apply for (pre-) settled status by 29 March 2022. After this date family members must meet the requirements in the UK immigration rules which are complex. In the DWA there is no cut-off date for those family members to apply.
  • Future spouses (where they were not in a relationship prior to 29 March 2019) must apply to join their partner by 31 December 2020.
  • The criminal threshold for refusal will be lowered to the equivalent of the less generous UK immigration rules where the crime was committed after 29 March 2019.

The Government notes that the UK cannot unilaterally guarantee the rights of U.K. nationals to remain in the EU post Brexit. They call for the EU Member States to issue communications to reassure U.K. nationals currently in the EU that their rights will be protected.

The Government states that they will guarantee that U.K. citizens returning here will be given equal access to NHS healthcare as all other UK nationals resident here. They state that they are working on bringing in reciprocal healthcare arrangements with Member States and on protecting past social security contributions in the event of a 'no deal'.

Practically speaking, in the case of a no-deal Brexit, UK-based firms looking to recruit EU nationals – or to have the pool of EU nationals open to them – will want to ensure their recruitment process allows any EU employee to be in work by 29 March 2019.  Similarly, those EU nationals planning to come to the UK for work may wish to arrive prior to 29 March 2019 to ensure that they can remain after December 2020 (or at least not be subject to different rules when the UK's new immigration regime comes into effect in January 2021). 

If you have any questions please contact Gillian Mckearney

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