Employers should review the proposals setting out no-deal Brexit plans, immigration plans if the United Kingdom does adopt the proposals set out in the withdrawal agreement, and related considerations.
As set out in our previous LawFlash, the UK government published a policy paper setting out proposals for European Economic Area (EEA) and Swiss nationals if the United Kingdom leaves the European Union (EU) without a deal on October 31, 2019. If a Brexit deal is reached, EEA and Swiss nationals lawfully entering the United Kingdom before the end of the “transition period” would be able to remain indefinitely.
Hiring EEA and Swiss Nationals in the UK After a No-Deal Brexit
In the event of a no-deal Brexit, EEA and Swiss nationals arriving in the United Kingdom between October 31, 2019, and December 31, 2020, will be able to enter and leave the United Kingdom as they do now. However, they will be required to apply for European Temporary Leave to Remain (Euro TLR), which will be issued for a period of 36 months. During this period, they will have a digital status that entitles them to work and rent property for the duration of the 36-month period.
If at the end of the 36-month period an EEA or Swiss national intends to stay in the United Kingdom beyond the initial period granted, they would need to apply for immigration status under the new immigration system, which is due to come into force on January 1, 2021.
Those who do not qualify under the new system will need to leave the United Kingdom when their Euro TLR expires.
Irish citizens will not need to apply for Euro TLR and will continue to have rights to live and work in the United Kingdom on the basis of their Irish passports.
UK Nationals Traveling to the Schengen Area After a No-Deal Brexit
In the event of a no-deal scenario, British nationals traveling to the Schengen Area (which comprises 26 European countries that have officially abolished all passport and all other types of border control at their common borders) from October 31, 2019, for business and tourism will be restricted to spending a maximum of 90 days in a 180-day period, calculated on a rolling basis, in the Schengen Area.
British nationals who intend to stay in the Schengen Area for more than 90 days in a 180-day period will be required to apply for a visa prior to travel.
If British nationals intend to travel to the Schengen Area for purposes other than business or tourism, they may need to apply for a work permit. Work permit requirements will differ by country.
British citizens traveling to Ireland will not require additional permission and they will be allowed to undertake any activity without restriction.
What Will Happen if There Is a Brexit Deal?
In the event that the proposals set out in the withdrawal agreement are adopted, i.e., there is a “deal,” EEA and Swiss nationals (and their family members) who lawfully enter the United Kingdom prior to the end of the “transition period,” theoretically December 31, 2020, will be able to remain in the United Kingdom indefinitely.
In accordance with the terms of the withdrawal agreement, EEA and Swiss nationals and their family members who wish to remain in the United Kingdom after December 31, 2020, would be required to make an application under the EU Settlement Scheme before June 30, 2021.
The rights of British and Irish citizens in each other’s countries are rooted in the Ireland Act 1949, and an Irish citizen living and working in the United Kingdom is not required to do anything ahead of the United Kingdom’s leaving the EU.
UK Nationals Moving to an EU Member State Before Brexit
British nationals who wish to move to an EU member state are advised to secure residence in the member state prior to Brexit so they can continue to work therein post-Brexit. Employers should check local interpretation of the EU Regulations to ensure a complaint registration process. Employers should also obtain documents evidencing the employee’s arrival in the member state prior to Brexit, in accordance with local interpretations of the EU Regulations.
Steps Employers Can Take
Employers should make sure they are aware of any travel British nationals will have in the EU on or after October 31, 2019.
British citizens cannot elect to apply for a work permit for EU member states ahead of October 31, 2019, while they continue to be covered by the EU Regulations governing free movement.
Employers should ensure that British passport holders have at least six months’ validity on their passports and that the passports are less than 10 years old. If not renewed, individuals may not be able to travel to most EU member states and Iceland, Liechtenstein, Norway, and Switzerland.
The United Kingdom will be phasing out the use of EEA national identity cards for travel to the United Kingdom during 2020. EEA nationals who do not hold current passports should apply for them as soon as possible.
Future Immigration System
The proposals set out that the government will introduce a new points-based immigration system from January 1, 2021. The independent Migration Advisory Committee (MAC) has been commissioned to review the Australian system and other international comparators to determine best practices for a post-Brexit UK immigration system. The MAC is an independent, nondepartmental public body sponsored by the UK Home Office that advises the government on migration issues; the MAC has been given until January 2020 to report its findings to the government.