UK-EU immigration: Less than 70 days to Brexit and more questions than ever

Posted: 23/08/2019

The date of the UK’s departure from the European Union is alarmingly close. Partner Pat Saini, the firm’s head of immigration, reflects on events and announcements of the last few weeks and the current mood of employers and education providers.

I attended a round table event last week with employers and education providers who are preparing for Brexit. Discussions centred around stockpiling, the shortage of lorry drivers in the UK and of course, talent.

In respect of talent, those around the table remained confident that EU nationals currently in the UK would be allowed to stay and that businesses would be allowed time to plan for people mobility.

The expectation remained that:

• If the UK exits the EU with a deal: EU nationals will be able to continue to come to the UK to work and study until 31 December 2020 (freedom of movement would effectively continue). Those wishing to benefit from the EU settlement scheme will need to be resident by 31 December 2020 and would need to apply for status by 30 June 2021.
• The UK exits the EU with no deal on 31 October 2019: EU nationals will be allowed to enter the UK for up to three months without requiring any type of immigration permission. Those that wished to remain beyond then, for example to work or study, will be able to apply for European Temporary Leave to Remain which will allow them stay for a further three years. There will be no charge for this application.
• Deal or no deal, a new immigration system is due to come into effect from January 2021. Indeed, Home Office officials have been working on the proposals for the new system and have been seeking feedback across the country from both businesses and education providers.
• There would be no need to check retrospectively the status of EU, EEA or Swiss employees who commence employment or studies before 1 January 2021, and that there would be no need to differentiate between those who arrived before or after the UK leaves the EU.

Discussions at the round table turned to UK employers who need to send British nationals on long term assignments to EU countries, and when announcements could be expected that will clarify, for example, the rules around sending a British national on a two year assignment to France.

Prime Minister Boris Johnson has made it clear that the UK will leave the EU on 31 October 2019 “no ifs, no buts”. Businesses and education providers have been comforted by the fact that the he had also continued to provide assurances that EU nationals currently in the UK will have the “absolute certainty of the right to live and remain [in the U.K.]"

Fast forward to the weekend of 17 August and the press was full of stories suggesting that the Home Secretary Priti Patel had signalled that freedom of movement will come to an end overnight from 31 October 2019 in the event on a no deal Brexit.

Both employers and education providers have again been left wondering what will happen on 1 November and what immigration system EU nationals intending to work or study in the UK will have to apply under, as there had been no announcements on a new or even a temporary immigration system being put in place from 1 November 2019.

Sensing the concern, the Home Office published a media factsheet seeking to counter reports that EU citizens will left in ‘legal limbo’ in a no deal scenario. It states:

• There will be no changes to the deadline to apply under the EU settlement scheme (31 December 2020).
• Freedom of movement will end on 31 October 2019.
• EU citizens will still be able to come to the UK on holiday or short trips.
• The PM wants an Australian style points based system and that the MAC (Migration Advisory Commission) will be commissioned to examine this.
• EU citizens resident in the UK by 31 October 2019 will be eligible to apply for the EU settlement scheme.

What the factsheet fails to address is the 'black hole' that will be created on 1 November. The questions which remain unanswered include:  

• What system will be in place from 1 November 2019 for those EU nationals who wish to come to work or study in the UK, when can announcements be expected on this?
• How will businesses deal with, for example, a German employee who moves to the UK before 31 October 2019 to take up a new post within the UK arm of his company, but then returns to Germany to attend business meetings on the 1 November (before he has made or completed an application through the EU settlement scheme). How will the employee demonstrate upon his return that he was resident before 31 October? Are businesses expected to hold off all business travel for EU nationals in the UK who have not yet applied under the EU settlement scheme?
• What complications will confront an EU student who is enrolled at a UK education institution on a nine month language course and takes up residence in September 2019: what documentation will they need to show when coming back to the UK after a Christmas 2019 break?
• How are education institutions expected to market courses which commence in 2020 to EU students?

All these and others are practical scenarios that UK businesses and UK education providers are grappling with daily. They don’t have time to wait for the PM to instruct the MAC to advise on, for example, an Australian Style Points Based system.

The Government needs to take immediate steps to set out its plans or revert to the previous government’s plans for EU nationals who wish to stay longer than three months to apply to temporary leave. 

In the absence of formal advice from the Government on this point, my team has been advising institutions to take a practical approach and where possible those EU nationals who are already resident in the UK (or will be by 31 October) should consider applying for status under the EU settlement scheme before they travel after 31 October.

Those needing to send British nationals to EU countries on assignments after 31 October should ensure that they obtain advice on which immigration rules could apply in each EU country.

Above all, organisations need to make sure they know who their staff are, where they currently are, and where they intend to be working after 31 October 2019.

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