With a mere 101 days to go until the UK exits the EU, parliament is divided over the Withdrawal Agreement, Theresa May has been fighting off a vote of no confidence and there are growing noises for a second referendum. Amidst all this turbulence, there are no guarantees that the UK will withdraw from the European Union on 29th March 2019 with a deal.
The government has now published a policy paper for that very scenario. The paper describes the rights EU citizens would have in a “no deal” Brexit. The European Parliament’s Brexit coordinator, Guy Verhofstadt, was quick to criticise the paper for being a “watered-down” version of the terms agreed in the Withdrawal Agreement.
If the Withdrawal Agreement is passed, at least in the short term, the rights for EU citizens to live and work in the UK would remain largely unchanged. However, the new paper outlines a far more robust stance in the event the UK withdraws from the EU without a deal.
If there is no deal
If the Withdrawal Agreement is not adopted, there will be no transition period. The new policy paper provides that only EU nationals residing in the UK by 29th March 2019 will be able to stay. There would be no implementation period, which means that there will be no guaranteed right for EU nationals arriving after 29th March 2019 to stay. There would also be no grace period, so individuals would only have until 31st December 2020 to submit applications under the settlement scheme. This significantly reduces the cut-off date for settlement and gives UK businesses and EU nationals alike less time to put plans in place.
Family members of EU nationals that have moved to the UK before 29th March 2019 would have until 29th March 2022 to join them in the UK, provided the relationship existed before 29th March 2019 or, in the case of a birth, the child is born overseas after this date.
The paper also underlines the government’s intention to ensure that “frontier workers” will still be able to reside on the continent and visit the UK to work for short periods. There are currently no details about the form this protection will take, but a separate immigration status is planned for them.
The paper also states that the government is planning agreements with the European Free Trade Association states (Iceland, Liechtenstein, Norway and Switzerland) to safeguard citizens’ rights. It has been agreed that, regardless of whether there is a deal, EFTA nationals will be allowed stay in the UK post-Brexit (and vice versa for UK nationals in EFTA countries).
The paper is noticeably silent on how, if at all, EU nationals will be able to move to the UK to live and work after 29th March 2019. It merely states that a new immigration system will be introduced from 1st January 2021 but, at the time of writing, the government has not published any details of this new system.
If there is a deal
If the Withdrawal Agreement is passed by Parliament, a transition period will govern the UK’s relationship with the EU until at least 31st December 2020. During the transition period, existing immigration and employment laws will continue untouched. Crucially for employers that recruit from the EU, the right of free movement for EU nationals to work in the UK and bring their family will continue (as will the rights of UK nationals and their families to work in the European Economic Area). Once the transition period ends, the right of free movement will no longer be automatic and more restrictive immigration policies are then expected to be introduced.
Under the Withdrawal Agreement, a settlement scheme allows EU nationals arriving in the UK before 29th March 2019 to stay, granting them “settled status” (indefinite leave to remain) or “pre-settled status” (temporary leave to remain while they acquire the necessary five years of residency required for “settled status”). The scheme is also open to EU nationals arriving in the period immediately after the UK leaves the EU, from 30th March 2019 to 31st December 2020, known as the implementation period. Individuals arriving during the implementation period could apply for “pre-settled status” and, eventually, “settled status”. Applications for the settlement scheme must be submitted by 30th June 2021, granting individuals six months from the end of the implementation period, which is known as the “grace period”.
For a full explanation of the Withdrawal Agreement, please see the recent report by our dedicated Brexit team at the following link: click here.
The Withdrawal Agreement, and its transition period, offers employers that rely on labour from the EU valuable time in which to prepare for the end of freedom of movement and for whatever immigration system replaces it.
Leaving without an agreement would seem far more disruptive for employers, with EU workers arriving after 29th March 2019 being unable to apply for the settlement scheme and there being no guarantees that they could stay under whatever new immigration system is introduced in 2021. The release of this policy paper, so close to the exit date, means that, without a deal, UK employers would only have three months in which to move EU nationals to the UK to secure their right to settle.
For more information visit our Employment section here.