What is the legal position?
As things stand, the UK’s departure date from the EU has been extended, likely to 31 January 2020, and possibly earlier should The Withdrawal Agreement be ratified sooner. Although the political landscape remains uncertain, we set out 11 key questions which should provide some legal certainty and direction, and simplify the jargon as much as possible.
1. What rights do I have as an EU national in the UK at present?
2. What is the EU Settlement Scheme? How do I apply for the Settlement Scheme and do I need an Android device?
3. Can I become a British citizen?
4. Do I need to be sponsored by a UK employer to work here?
5. What do I need to think about and do as an employer of EU nationals in the UK? What are my legal obligations now and when the UK leaves the EU? Should I actively support staff through this process?
6. When and how will non-EU nationals be affected by changes to the UK immigration system?
7. What if there is a further extension beyond 31 January 2020?
8. How might the future immigration system impact on employers?
9. What happens if the UK leaves without a deal?
10. What happens if Article 50 is revoked?
11. What happens next?
1. What rights do I have as an EU national in the UK at present?
Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. The Government, however, is encouraging all EU nationals to register under its EU Settlement Scheme (“the scheme”) now.
2. What is the EU Settlement Scheme? How do I apply for the Settlement Scheme and do I need an Android device?
The scheme has been introduced by the Government to enable EU nationals to register their status in the UK. Those EU nationals who have resided in the UK for five years or more will be granted ‘Settled Status’ i.e. the right to reside permanently in the UK. Those EU nationals who have resided in the UK for less than five years will be granted ‘Pre-Settled Status’. This will be valid for five years and will enable individuals to apply for Settled Status once they have completed five years of residence in the UK.
Applicants must apply to the Settlement Scheme online. If you have access to an Android mobile phone or an iPhone 8 or above (it can be yours or you can borrow one to make the application), you will be able to verify your passport and provide a facial scan and image using the mobile device. If you do not have access to a mobile device, you can either post your ID document to the Home Office or attend one of the ‘ID Document Scanner Locations’, (https://www.gov.uk/government/publications/eu-settlement-scheme-id-document-scanner-locations/locations-offering-chip-checker-services) where you can scan your passport.
It is free to apply under the scheme. The Government has said that it will consider applications with a view to approving them, rather than refusing them.
3. Can I become a British citizen?
If you hold Indefinite Leave to Remain, Permanent Residence or Settled Status, or are eligible for these, you may also be eligible to apply for British citizenship.
If you wish to obtain British citizenship, you should seek legal advice on whether you are eligible and what options are available to you.
4. Do I need to be sponsored by a UK employer to work here?
EU/EEA nationals will not need to be sponsored by their employer and can pursue employment opportunities here in their own right, regardless of whether the UK leaves the EU with a deal or without a deal. However different legal provisions may apply in a deal or a no-deal scenario.
5. What do I need to think about and do as an employer of EU nationals in the UK? What are my legal obligations now and when the UK leaves the EU? Should I actively support staff through this process?
In legal terms as an employer of EU nationals you are not required to do anything at present. However, it would be good practice to provide employees with information regarding the Settlement Scheme and how to apply under it. Right to work checks should be carried out normally.
Workforce planning should be conducted to cover all eventualities. It would be prudent to introduce a policy on what your business would do, especially in case of a no-deal Brexit and considering the effect of bringing new members of your workforce/new employees to the UK from the EU. You should also update the nationality and immigration status details of your employees so that you have up to date records. Active management now will mean not only that your business will be well prepared when the scheme closes, but your business will also be able to adapt should there be any unexpected developments.
Understandably the current uncertainty is a cause of concern and anxiety to all EU nationals. As an employer it would be good practice to make a mobile device available at work so that those users who do not have access to it, are easily able to apply under the scheme rather than having to attend one of the centrescenters or have to send their passport to the Home Office by post. Further, EU staff may also have non-EEA family members. Although these individuals can also apply under the scheme, it would be helpful to have a policy in place on how your business would support family members.
You should also consider whether to send internal updates on Brexit so that staff are up to date and feel reassured. Although the soundbites might sound confusing, in reality there are several options available. From our experience clear communication with staff will provide reassurance.
6. When and how will non-EU nationals be affected by changes to the UK immigration system?
Non-EU nationals at present remain unaffected until the end of the transactional period on 31 December 2020.
The Government have confirmed that a new immigration system will come into effect for all non-UK nationals from 1 January 2021. At present there are no firm details as to how this new system will operate, though it is likely to be a points-based system, possibly based on the current Australian model.
7. What if there is a further extension beyond 31 January 2020?
Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. It is however worth noting that although freedom of movement would continue to apply, the end of the transition period after (if) the UK leaves with a deal remains 31 December 2020.
8. How might the future immigration system impact on employers?
Until the future immigration system is introduced from 1 January 2021, employers, landlords and other third parties need to carry out immigration status checks on EU citizens’ right to work or rent in the UK as they are currently done. All EU citizens will be able to evidence their rights using their passport, their national ID cards or their digital status granted under the EU Settlement Scheme (or in the case of a no-deal Brexit, the Euro TLR scheme). Non-EU family members will be able to rely on a biometric immigration document to prove their entitlement to work and rent in the UK.
From January 2021, employers, landlords and other third parties will need to check whether an EU citizen has a valid UK immigration status, and not just an EU passport or ID card for any new recruitment orf new provision of service. This check must be undertaken at the time the individual applies for a new job, tenancy or bank account.
9. What happens if the UK leaves without a deal?
If the UK leaves the EU without a deal, then an individual will need to have been living in the UK before the exit date and will have until 31 December 2020 to apply under the Settlement Scheme.
Those arriving after the exit date in case of a no deal, will be able to remain in the UK until 31 December 2020. If however they wish to stay beyond 31 December 2020, they will be required to apply for a three year visa under the Euro Temporary Leave to Remain Scheme (ETLR). The ETLR will allow individuals a bridge into another category under the new immigration system and will count towards settlement in the UK.
10. What happens if Article 50 is revoked?
If the UK decides to revoke its notification under Article 50 of the Lisbon Treaty, then the UK will remain a member of the EU. The two-year exit process will end. The UK will have to serve another notice under Article 50 of the Treaty for a subsequent two-year exit process to restart.
The UK is headed for a general election on 12 December 2019. Given the stance of various political parties on the subject matter, it is unlikely that the UK will leave the EU without a deal at this stage. This however remains an evolving situation and the risk of no-deal cannot be ruled out completely. Accordingly, businesses and individuals should prepare for all eventualities.
How can Fox Williams help?
Our highly experienced team provides across the board immigration advice. For employers, we provide talks, learning sessions, surgeries and drop in sessions for employees at the site. Or register to listen to our Webinar hosted by Lexology here.
For individuals we provide bespoke advice on what options best suit their unique circumstances.
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