Brexit – current position for EU nationals in a no-deal scenario

October 7, 2019

…it is even more important now that employers inform, reassure and support their EU staff.

In our last article we set out the key advantages of encouraging your current EU staff to apply under the EU Settlement Scheme.

With the recent Supreme Court judgement and the confusing and contradicting Government press releases regarding no-deal planning, it is even more important now that employers continue to inform, reassure and support their EU staff.

Supreme Court Judgement Implications

Essentially the courts ruled that the suspension of Parliament “never happened”. Parliament can now get back to scrutinising the PM’s Brexit plans! The likelihood of a no-deal Brexit on 31 October 2019 has diminished, however, it is still very useful for UK employers to familiarise themselves with the Government’s no deal plans.

What is the current position for EU nationals in a no-deal scenario?

In August, Priti Patel’s announcement that EU free movement rights would end immediately in a no deal scenario, caused widespread concerns. There has always been the expectation of some sort of transitional period. Thankfully on 5th September the Government back-tracked and indicated a transitional period would still be implemented. This transitional period is different to Teressa May’s withdrawal agreement transitional period, but essentially will achieve the same aim. In summary, this latest press release states that after “Brexit Day”, EU nationals will still be able to live and work in the UK for a temporary period. This climb-down was very welcomed by businesses as the alternative would have caused chaos. The Government has now formally released a policy paper titled ‘No deal immigration arrangements for EU citizens arriving after Brexit’.

The policy paper sets out in detail what this transitional/temporary period will consist of. The good news is that it will last until 31 December 2020. EU nationals can apply for what will be known as European Temporary Leave to Remain (Euro TLR). Another key aspect for travel/airports is that EU nationals can continue to use the electronic eGates. It has been indicated that Euro TLR will be a free online application process involving identity, security and criminality checks. Euro TLR will essentially replicate EU free movement, under UK legislation, it will provide a type of “UK free movement”. The idea being that this will bring EU nationals to a point where they can apply under the new immigration system set for 1 January 2021. The Euro TLR will be valid for 3 years, so theoretically EU nationals arriving in December 2020 will be able to stay until December 2023, before having to apply under the new immigration rules set to begin in 2021.

The key thing for employers in a no-deal scenario is that Euro TLR is voluntary (although advisable to do). Employer’s right to work checks obligations will therefore not change. In a no-deal scenario, Employers can continue to accept EU passports and ID cards as evidence of an individual’s right to work in the UK up until 1 January 2021. Further details of the UK’s new “Australian-style” immigration system is to be released in 2020 and we will keep you up to date as further details emerge.

Lastly, it is recommended that employers keep a note of EU employees who arrive in the UK before Brexit. For these EU nationals arriving before Brexit they will apply under the current EU Settlement Scheme, for the people arriving after Brexit they apply for Euro TLR and then switch into the new immigration system set for 2021.

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