Impact of Brexit on immigration and the right to work

Posted by Tessa Robinson

Solicitor

As Brexit looms ever closer with the UK’s exit date from the European Union set for 29 March 2019 both employers and individuals are increasingly seeking to ensure they are aware of any changes to the immigration and right to work legislation.

As more guidance and information is agreed and announced we will keep you updated in a series blogs. In the meantime, we will look at the latest announcements, and what we currently know about the position post Brexit, and a timeline for when we expect more information to be provided.

Transition Period and the EU Settlement Scheme

On 19 March 2018, the government agreed that EU migrants who arrive in the UK during the transition period will gain the same rights to settle in the UK as those who arrive pre-Brexit. Therefore we now know that the current immigration system will apply to EU workers arriving in the UK until 31 December 2020.

EU citizens and their family members will be able to enforce their rights under the EU Settlement Scheme (the Scheme). Those eligible individuals who arrive in the UK by the end of 2020 will have until 30 June 2021 to make their applications under the Scheme.

Those eligible individuals who have lived in the UK continuously for at least 5 years at the date of application will be granted indefinite leave to remain (ILR) and those who have lived in the UK for a shorter period of time at the date of application will be granted 5 years limited leave to remain (LTR). Those granted LTR will then be able to apply for ILR once they reached the 5 year point.

This scheme is currently being tested and currently only a limited number of students at named universities and named NHS Foundation Trusts are eligible to apply. The application fee for the scheme is £65, or £32.50 for those aged under 16 on the date of application.

It is envisaged that, subject to any amendments following the trial, it will be implemented on a phased roll out basis, with the scheme will be fully open by 30 March 2019.

What if there is a no deal Brexit?

On 23 August 2018, the UK government issues guidance on “how to prepare for Brexit if there’s no deal”. Although since this has been released, this scenario is looking marginally less likely, close attention should be paid to the guidance on workplace rights. It confirms that the vast majority of workplace rights will not be affected. The government has issued guidance that for EU employees who work outside the UK in an EU country for a UK employer, they should check whether they will be protected under the national guarantee fund established in that country in the case of the employer becoming insolvent.

The good news for both employers and employees is that, as expected, all rights will remain the same in the case of a no deal Brexit.

When will we know more?

Within the past few days we have been given the first hint as to how the immigration system may change post-Brexit.  The government have launched a pilot scheme for temporary visas for agricultural workers.  Under the scheme, agricultural workers will be able to work on farms for six months, but then must leave the country. Sending a strong message, ministers have stressed that if there is evidence that the migrant workers were not returning to their home countries once their visa had expired, the scheme would be closed.

Key dates for the diary are as follows:

  • September 2018 – the Migration Advisory Committee (“MAC”) will report on the costs and benefits of EU migrants to the UK economy
  • October 2018 – the Home Office will publish its own findings taking into account the MAC report
  • October 2018 – the target date for European parliament to sign a final deal, including outlining citizen’s and worker’s rights after the transition period ends

What should you do?

At present we advise that you familiarise yourself with the current legislation and the EU Settlement Scheme so that you are ready to act when necessary. The government has made it clear that they are not underestimating the size of the task ahead with regard to immigration in the UK post Brexit, and as set out above, further information and guidance is imminent.


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