The government has now established the EU Settlement Scheme under which EU nationals can continue to live in the UK after Brexit. Different considerations apply in the event of a ‘deal’ or ‘no deal’ scenario assuming the UK leaves the EU on or before 31 October 2019. It has also set out proposals for EU nationals who wish to work in the UK after Brexit.
Once the UK leaves the EU, the principle of free movement of workers will cease to apply. However, this will not take immediate effect. Under the proposed EU Withdrawal Agreement (the deal) it was agreed there would be a transition period from 29 March 2019 to 31 December 2020. This should now take effect from 31 October unless there is an earlier leave date. During the transition period, EU nationals can still come to the UK to live and work.
EU nationals who wish to remain in the UK after the transition period will need to apply for settled status before 30 June 2021. Those who have been resident continuously for 5 years (whether or not they have already applied for permanent residence) will be granted settled status. Those who have been resident for less than 5 years will be granted pre-settled status and would be eligible for settled status once they reach 5 years.
Settled status entitles EU nationals to live and work permanently in the UK and access to benefits.
The application is a relatively simple process and is free of charge. Those who paid the £65 fee which applied previously are entitled to a refund.
If the UK leaves the EU without a deal on or before 31 October ie the Withdrawal Agreement is not approved by Parliament, then under current proposals, only those EU nationals resident in the UK before 31 October 2019 (or earlier leave date) would be entitled to apply for settled status and will need to do so before 31 December 2020. Any EU nationals who come to the UK from 31 October to 30 December 2020 will only be able to live and work in the UK for up to 3 months. If they wish to stay for longer, they will need to apply for European Temporary leave to remain in the UK within the initial 3 months. This will allow them to live and work in the UK for up to 36 months. They will not be able to extend this period so will either need to leave the UK or apply to remain under the UK immigration rules which apply when the permission expires.
Any EU nationals who come to the UK from 2021 in either scenario will need to comply with UK immigration rules in force at that time. Visas will not be required for short visits but permission will be required in order to work in the UK. The government has set out proposals for new immigration rules. These will simplify the sponsorship licence system, currently required to employ non-EU nationals. Changes include abolishing the resident labour market test and the cap on the number of skilled workers allowed each year. There will also be a new temporary work route for lower skilled jobs allowing stays of up to 12 months in the UK followed by a 12 months’ cooling off period. There are no specific provisions or concessions for employing EU nationals.
The post Brexit restrictions do not apply to Irish nationals who will continue to have the right to live and work in the UK.
Deal or no deal, under current proposals, it will be far harder for employers to employ EU nationals from 2021. The sponsorship licence system is unnecessarily complicated and expensive. The proposed changes are unlikely to make very much difference. Right to work checks will also be more onerous. However, nothing is finalised with Brexit and the proposals could easily change.