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The knowns and unknowns of EU immigration post-Brexit

Posted: 17/12/2018

Against the backdrop of one of the most extraordinary periods in British politics in recent memory, triggered by the escalating crisis surrounding the Brexit deal, the insight and expertise provided by Penningtons Manches’ immigration team was in acute demand this this month at a series of seminars that sought to cut through the noise, confusion and speculation.

The firm’s head of immigration Pat Saini, alongside partners Hazar El-Chamaa and Penny Evans and associate Afeefah Shabbir, set out what is actually known – and, crucially, unknown – about immigration post-Brexit. The team welcomed a full-house of senior HR professionals, education providers and business owners from a wide range of sectors including tech, retail, social housing and accountancy and finance at events in London and the Thames Valley. The sessions considered how companies can support current and future EU staff, including options for EU nationals and their family members in relation to the settlement scheme, and right to work checks post-Brexit. The post-Brexit immigration system – which is to be introduced from January 2021 (the details of which are yet to be published) was also discussed.

Pat Saini commented: “The questions and concerns raised by attendees provided a perfect snap shot of how the ongoing chaos and uncertainty is really impacting businesses, especially those with operations in the EU, and EU companies with significant operations in the UK. The uncertainty amongst attendees was very apparent, and of course conflicting messages and speculation in the media do not help.”

She went onto to explain that we do know, however, one of two possible pathways relating to EU nationals and the settlement scheme will come into play after the withdrawal date: if the Government reaches a deal, then EU nationals wishing to use the settlement scheme will need to be resident by 31 December 2020 and apply by 30 June 2021. In a ‘no deal’ scenario, they will need to be resident by the withdrawal date itself – 29 March 2019, just over 100 days away – and apply by 31 December 2020. 

In both cases, what happens in between the cut off dates is of cause for concern: “Although the Government has said employers won’t have to put in place extra checks during the transition period, border officials will not know who has come in and who has gone out during that time and for what purpose. This will open up a potential ‘black hole’ that employees who need to travel between the UK and their company’s operations in other EU countries could fall into”, Pat said. 

By way of example, in the no deal scenario a French employee who moves on 28 March 2019 to take up a new post within the UK arm of his company, but then returns to France in June (before he has made an application through the settlement scheme) to attend business meetings and see family members will need to be able to demonstrate upon his return that he was resident before 29 March 2019. EU nationals and their employers need clarity on this as soon as possible.

In addition, attendees at the seminars asked about the future immigration system. At the time of writing, the white paper that sets out how it will work has not yet been published. Speculation is however growing that as per the Migration Advisory Committee’s recommendations, highly skilled individuals will be prioritised over those with “lower” skills. Once the white paper is published, the immigration team at Penningtons Manches will provide further analysis.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP