We have seen lots in the press about free movement ending on 31 October 2019 if the UK leaves the EU. Will this happen and if so what are the consequences for our workforce?
There have been lots of conflicting messages regarding immigration in the UK post-Brexit. It is true that the Government wished to end free movement immediately upon the UK leaving the EU. However, this is not yet legally possible as the Government is not ready to implement a new immigration system from 31 October 2019.
The law as it stands
It is crucial to understand that the free movement of EU citizens does not end automatically as a result of the UK leaving the EU. Free movement will only end once UK law is changed. At present the legal position is that the European Union (Withdrawal) Act 2018 will convert much of EU law into UK law. As a result, free movement will continue in law until its legal foundation is repealed.
Theresa May’s Government intended to repeal free movement through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill as soon as possible. Mrs May’s Government passed legislation which allows EU citizens arriving in the UK post Brexit, an automatic temporary right to enter the UK for up to 3 months, after which they would need to apply for a visa to remain in the UK. However, this bill has not been considered in Parliament since March 2019 and therefore is unlikely to be in force in time for 31 October 2019.
The aim of the current UK Government
It is clear that the current Government wishes to end free movement of EU citizens as soon as possible. This will need to be done by law being passed, and at present no announcements have been made as to how this is going to be implemented.
The Home Office had previously stated that all EU citizens who reside in the UK prior to 31 October 2019 would have until “at least 31 December 2020” to apply for settled status. It is therefore possible that if free movement ended overnight upon the withdrawal of the UK from the EU, millions of lawful citizens who had not yet applied for settled status could find themselves in a situation where they could not prove their right to remain in the UK and would effectively have their legal status removed overnight if a new immigration system was not in force, prior to 31 October 2019.
Our advice remains the same - APPLY FOR SETTLED STATUS
Our advice remains the same, all eligible individuals should apply for SETTLED STATUS as soon as possible in order to avoid uncertainties over proving their rights to live and work in the UK. If settled status is granted prior to the 31 October 2019, the individual would then be legally entitled to remain in the UK regardless of any future changes to the immigration system.
Less than a third of all eligible individuals have applied to date under the settled status scheme. In order to avoid uncertainty for employers, we advise you encourage all eligible employees to apply.
The future of the free movement of people and immigration
The current Government has however now issued revised information regarding free movement and the immigration system that will be in place immediately post-Brexit in the event of a 'no-deal' exit from the EU. A transitional period will be in place until 31 December 2020 whereby all EU citizens and their family members will be able to move to the UK and live, study and work as they do now. They will be able to evidence their right to do so by using their passport of national identity card.
If they wish to stay beyond 2020, they will need to apply for a UK immigration status granting permission to stay in the UK. If this is not granted, they will need to LEAVE the UK.
European Temporary Leave to Remain
One option, if no other visa is available for an individual, will be to apply for European Temporary Leave to Remain. This must be applied for before 31 December 2020.
Under this scheme, successful applicants will be granted a period of 36 months temporary leave to remain in the UK. The 36 months will start to run from the date the temporary leave to remain is granted. The application process will be similar to the settlement scheme currently in place, and there will be no fee to apply.
Once an individual has been granted European Temporary Leave to Remain, they will be able to:
- Use the NHS;
- Enrol in education or continue studying;
- Access public funds such as benefits and pensions, if eligible; and
- Travel in and out of the UK without the need for a further visa.
It is expected that a new immigration system, which will likely be points based, will be in force from January 2021. The Migration Advisory Committee will report to the Government in 2020 on its review of other international countries immigration systems, and its view on what system would strengthen the UK’s labour market.
Current immigration options for your workforce
It is therefore clear that, EU citizens and their family members who are resident in the UK before Brexit MUST apply for immigration status to remain in the UK under the current immigration system or under the EU Settlement Scheme by 31 December 2020.
In the event of a no deal Brexit, all EU citizens and their family members who move to the UK after Brexit, will need to have applied for a UK immigration status – whether European Temporary Leave to Remain, or under a new immigration system when announced, by 31 December 2020. If they do not, they will be in the UK unlawfully.
If you wish to understand eligibility rules and application procedures for the different options set out above, please get in touch with Tessa Robinson 01634 828277.