As most, if not all, will no doubt be aware, the UK is due to leave the EU on 31 October 2019.
Even with the recent agreement of exit terms with the EU, it still looks fairly unlikely that a deal will pass through parliament. The DUP has confirmed it will not vote for the Prime Minister’s new deal, and Leader of the Opposition Jeremy Corbyn has criticised it as ‘even worse’ than Theresa May’s. If that is the case, and the Prime Minister is true to his word and ‘does’ rather than ‘dies’ we will be crashing out of the bloc on 31 October.
If the UK does leave the EU without a deal, aptly on Halloween, only EU nationals (where EU nationals are referred to in this article, this includes also includes EEA and Swiss nationals) who are already living in the UK by that date will continue to have the right to live and work in the UK beyond 31 December 2020. There is therefore a 14-month interim period whereby freedom of movement will continue, even for those who fall foul of the 31st cut-off date. EU nationals and their family members must apply under the EU Settlement Scheme by 31 December 2020 in order to confirm their rights beyond this date.
If a deal is passed, the cut-off date to be living in the UK in order for rights to continue will be 31 December 2020. The deadline to apply under the Settlement Scheme will be 30 June 2021.
For employers concerned about how to differentiate between those who were living in the UK before or after the relevant cut-off date, they need not worry for the time being. There will be no change to how employers must check the right to work of EU nationals until 31 December 2020. Employers should continue to check and copy an EU national’s original passport or national ID card in their presence on or before their first day of work to complete an acceptable right to work check before that date. Importantly, employers must take care not to discriminate against EU nationals and must not require evidence of their status (beyond their passport or national ID card) before 1 January 2021.
From 1 January 2021 onwards, the intention is that a new immigration system will apply. Employers will be required to check additional documents for any EU nationals starting employment after that date. For EU nationals who have status under the Settlement Scheme, this will likely be an online check of their status. For those without, it will be checking and copying their passport and a Home Office issued right to work document (visa), in the same way that non-EU national right to work checks are currently made. There will not be a requirement for employers to undertake retrospective checks on existing EU national employees.
So, for now the right to work check process has not been affected by Brexit and will not be until the close of 2020. Employers should be mindful, however of the various cut-off dates for their employees to be living in the UK and applying under the Settlement Scheme so that they are able to evidence a right to work in the UK beyond 1st January 2021.