Brexit planning is important, especially if the UK leaves the EU without a deal
- At present the UK is due to leave the EU on 31 October 2019. A “no-deal” departure is a possible outcome as the new Prime Minister has made a commitment to leave on that day regardless of whether a Withdrawal Agreement has been ratified.
Educate EU citizen staff on the EU Settlement Scheme
- The Home Office has introduced new Immigration Rules (“IR”) to provide for the rights of EU citizens (and their family members) to remain in the UK post-Brexit.
- The EU Settlement Scheme (“the Scheme”) provides the basis for EU citizens resident in the UK and their family members to apply for domestic UK immigration status when freedom of movement no longer applies.
- The application process is digital, quick and user-friendly. The Home Office is looking for reasons to grant rather than refuse.
Know your current EU citizen population
- A useful starting point is to list EU citizen employees. Non-EU family members will also be required to file an application under the Scheme.
Remind all EU employees of the mandatory nature of registering under the Settlement Scheme
- EU citizens (and their family members) must register under the Scheme. They must do so on or before 30 June 2021 (deal) or 31 December 2020 (no-deal).
Emphasise the deadlines by which applications must be made
- The deadlines to register are dependent on whether the EU leaves the UK with or without a deal. It is important to understand the differences.
Plan for future EU citizen hires in deal and no-deal scenarios
- If the UK leaves the EU with a deal then the status quo will prevail until the end of a transition period (currently due to end on 31 December 2020). They will have to register under the Scheme, but will have up until 30 June 2021 to do so.
- If there isn’t a deal, freedom of movement will end on 1 November 2019. Under plans announced in January 2019 (and subject to change by the new Government) EU nationals arriving on or after 1 November 2019, will be granted 3 months deemed leave to enter and reside/ work in the UK. EU citizens wishing to stay longer will be able to apply for a 36 month extension of stay under a European Temporary Leave to Remain (“ETLR”) Scheme. This scheme will remain open until 1 January 2021 when new immigration rules will come into force.
Right to Work Checks
- It is not mandatory for employers to conduct new Right to Work Checks (“RTWC”) on EU employees (and family members) who commenced employment on or before 31 October 2019.
Online Right to Work Checks for EU nationals
- Online RTWC’s are in place for EU citizens (and family members) that have been granted status under the Scheme. https://www.gov.uk/government/news/online-right-to-work-checks
Where possible, employers should consider bringing forward recruitment plans for EU citizens
- If a business is currently planning to hire an EU citizen (or the family member of an EU citizen) they should aim, if possible, to on-board them before 31 October 2019 in case of a no-deal outcome.
Differences between a deal and no-deal Brexit will impact future EU hires
- A no-deal Brexit should not be underestimated. See below for more details.
EU SETTLEMENT SCHEME
How to Apply
The EU Settlement Scheme is open and it is free to apply. Applicants can access the application at www.gov.uk/apply-eu-settled-status
Free – The fee was scrapped on 21 January 2019
To make a valid application an applicant should check:
They have filed the application form inside the UK
The required proof of identity and nationality has been provided
Biometrics have been submitted
Relevant documents have been submitted
An applicant who has been continuously resident in the UK for 5 years at date of application will be eligible for settled status.
Once they have held settled status for 12 months they may then be eligible for British Citizenship.
If they are married to a British citizen they may be in a position to apply for Citizenship on receipt of settled status.
Future absences from the UK of 5 years or less should not impact their settled status – although this period is still subject to approval.
Any children born in the UK after settled status is obtained will automatically be British.
An applicant, who has been continuously resident in the UK for less than 5 years up to the date of application, will be eligible for 5 years limited leave to remain (“pre-settled status”).
An application for settled status may be made once an applicant has completed 5 consecutive years on condition that s/he not been absent for more than 6 months of any year.
Absences from the UK of 2 years or less should not impact pre-settled status – although this period is still subject to approval.
Children born in the UK to a parent with pre-settled status will automatically be eligible for pre-settled status.
All status will be electronic and linked to a valid passport. If passports are renewed applicants must update their details with the Home Office. This requires submission of the new original passport, which can be held for up to 6 weeks.
A NO-DEAL BREXIT
A no-deal Brexit will mean the following:
Freedom of Movement will end on 31 October 2019.
EU citizens (and family members) entering the UK from 1 November will automatically be granted deemed leave to enter for 3 months on arrival and will be able to work and study. They will be granted 3 months deemed leave on each entry to the UK.
If EU citizens (and family members) want to stay longer they will have to file an application for European Temporary Leave to Remain (ETLR).
The ETLR application will be mandatory for EU citizens entering the UK post 31 October 2019.
ETLR will be granted for 36 months. This is non-extendable.
Non-EU, EEA or Swiss citizen close family members of EU, EEA or Swiss citizens living in the UK will be required to apply for a family permit before accompanying or joining them in the UK.
Any EU citizens and their family member’s resident in the UK before 31 October will still be able to apply under the EU settlement scheme. Applications must be filed by 31 December 2020.
Note: These arrangements are subject to change as they are based on policy made by the previous Government. Further announcements should be expected in September 2019.
NO DEAL: EUROPEAN TEMPORARY LEAVE TO REMAIN (ETLR)
Who can apply?
Applicants must be:
- EU citizens
- Who arrive in the UK after the UK leaves the EU without a deal
- Who wish to stay in the UK for more than 3 months
How to apply
Applications must be submitted within 3 months of arriving in the UK.
The application will be online.
Mirroring the EU settlement scheme, applicants will simply be required to prove their identity and declare any criminal convictions.
A fee will apply to applications for ETLR however the Immigration Skills Charge and Immigration Health Surcharge will not apply. No fee has been agreed to-date.
Anyone wanting to stay beyond the 36 months will be required to switch into a different visa category under new immigration rules, which will come into effect from 1 January 2021. Those who do not qualify will have to leave the UK when their ETLR expires.