What is the legal position?
As things stand, the UK’s departure date from the EU has been extended to 31 October 2019. Although the political landscape remains uncertain, we set out 10 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? 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 (it can be yours or you can borrow one to make the application), you will be able to scan your passport using the Android device. If you do not have access to an Android device, you can either post your ID document to the Home Office or attend one of the ‘ID Document Scanner Locations’, (see here) 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? EEU/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 taking account of its effects on 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 an Android 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 centers 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.
The Government has published its White Paper for a post-Brexit single immigration system due to come into effect from 1 January 2021. Please see here for a summary of these changes.
These proposals should in theory make it easier for businesses to hire and sponsor skilled workers from outside the UK. However, it should be noted that these are proposals set out by the Government and are subject to changes after debate and consideration in Parliament.
7. What if there is a further extension beyond 31 October 2019? 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. 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.
If an individual arrives after the UK leaves without a deal, then they will be able to visit the UK for up to three months for work or study. They will however need to apply for a three-year European Union Temporary Leave to Remain visa if they wish to remain in the UK beyond three months. Please see here for further details.
9. What happens if Article 50 is revoked? If the UK decided 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.
10. What happens next? Although it is unlikely that the UK will leave the EU without a deal given that Parliament has voted against it, please see below for key dates and how they have an impact on the Brexit process.
Potential change in withdrawal date If the UK and the EU ratify the Withdrawal Agreement at any time before 31 October, then the withdrawal will take place on the first day of the following month.
Brexit key dates
23 May UK takes part in EU elections.
A vote in Parliament is expected in early June. As we explained above, if for example the Withdrawal Agreement is ratified at any time in June, then the UK can still leave on 1 July with a deal.
New EU Commission/next five-year political cycle in Brussels begins on 1 November 2019.
20 – 21 June Brussels EU Summit where leaders will take stock of Brexit Progress.
If the Withdrawal Agreement is ratified in June, the UK can leave on 1 July. Although the UK will have taken part in EU elections, the 5-year political cycle in Brussels does not begin until 1 November.
August and September
f the UK and the EU ratify the treaty at any time before 31 October, then the withdrawal will take place on the first day of the following month, i.e. on 1 September or 1 October.
UK party conference season is between August and September. If there is a change in leadership, it might be that they are in place by the time Conservative party conference starts on 29 September.
17 – 18 October, Brussels
EU Summit. If the UK has not left the EU by this date and if a deal is not in place, this will be the crucial summit. If there is a change in leadership, this might mean a change in direction.
This is the new Brexit date if the UK and EU do not reach a deal. EU insisting that by this point the UK must choose to either ratify the exit, opt for a no-deal or cancel departure. However further delay cannot be excluded.