On 28 January 2019 Home Secretary Sajid Javid outlined the provisions the government will put into place for EU citizens who arrive in the UK after Brexit in the event of ‘no deal’.

Following our recent Law Now updates on the employment and business immigration impacts of Brexit, we summarise below the government’s proposals, and those of the white paper that was published in December which sets out the government’s long term plans for immigration.

The key point to note is that if the UK leaves the EU without a deal, the government will end free movement of people as soon as possible. A draft Immigration Bill has been published and is already going through Parliament.

This contrasts with the government’s plans under the draft withdrawal agreement, whereby there would be a transition period to mitigate the impact of Brexit on citizens’ rights until 31 December 2020.

Instead, and confusingly, following a ‘no deal’ Brexit a different ‘transition period’ would apply from 30 March 2019 that entitles EEA citizens and their family members to come to the UK to visit, work or study for a period of up to three months. Should those citizens wish to stay longer, they will need to make an application for European Temporary Leave to Remain. This application would be subject to identity, security and background checks before approval is granted and would attract an (as yet unknown) charge. As and when permission is granted successful citizens could then stay in the UK for a further three years.

Any citizen who wished to stay longer than three years would have to make a further application (presumably attracting a further charge) under the government’s proposed ‘future skills-based immigration system’, currently being formulated with the intention of coming into force in 2021. This is the same system (the subject of a recent immigration white paper) that would apply to European citizens who enter the UK after the end of the transition period in the event of a negotiated exit (i.e. from 1 January 2021).

The Home Secretary described the ‘no-deal’ transitional plans as designed to “minimise disruption to ensure the UK stays open for business”. With so much unknown, however, some disruption is inevitable, particularly if the government has to scramble to put in place transitional arrangements at short notice.

Regardless of whether the exit from the EU is negotiated or not, in the long term the UK’s immigration system is changing. By way of a high level summary, the principles and aims of the ‘future skills-based immigration system’ are:

  • no more freedom of movement for EU citizens;
  • no change to the Common Travel Area enabling free movement between the UK and the Republic of Ireland;
  • EU and non EU citizens will be considered under the same immigration system;
  • net migration should be reduced to “sustainable” levels;
  • there should be no need for a visa requirement for short term visits to the UK by EU citizens or for intra-company transfers between EU and UK companies (subject to reciprocal arrangements being put into place by the EU);
  • the sponsorship system should be streamlined to make it easier for employers (particularly those previously reliant on an EU workforce) to obtain the people they need;
  • the skills threshold will be reduced and skilled migrants sponsored by an employer will be prioritised, with the potential for permanent settlement in the UK;
  • the cap on skilled workers will be removed, as will the requirement for the resident labour market test to be met as part of the employer’s sponsorship; and
  • there will be a trial of a temporary worker route in the UK with the aim of meeting the need for lower skilled workers. Qualifying individuals could enter the UK to work for up to 12 months, and then be required to leave for a cooling off period of 12 months. There would be no requirement for sponsorship and those entering would have no recourse to public funds and would not be able to apply for settlement.

The intention of this new system is to prioritise workers’ skills in a post Brexit future and to ensure that UK businesses have the people they need to do the job. However, the most straightforward option for EU citizens remains to arrive in the UK before Brexit. The rights of those citizens who do will be protected, whether the deal is negotiated or not, and the settlement scheme that we described in our previous piece will apply to them. As the odds of a ‘no deal’ Brexit shorten, it becomes increasingly important to ensure your employees are working here before the 29 March 2019.