Government Reforms (1):  Brexit – What’s the Deal with No Deal?

brexit

What do we already know?

We have updated you in previous Newsletters (see here) that when the UK leaves the EU, with or without a deal, free movement of people will be allowed to continue for a transitional period from the exit date for approximately two years.

EU citizens and family members who want to continue to live and work in the UK beyond 30 June 2021 (or 31 December 2020 if there is a no-deal Brexit), will need to apply to the EU Settlement Scheme. (Those who have indefinite leave to enter or remain, or who have citizenship, do not need to apply to the scheme).

Employers may like to support their UK-based EU/EEA (European Economic Area)/Swiss employees to apply for the, available here. Employers can provide assistance to their staff and signpost the necessary guidance using the Home Office’s Employer’s toolkit, available here.

What’s new?

The Government has published more information on what will happen if there is a no-deal Brexit:

  1. a new Home Office policy paper on post-Brexit EU migration (available here)
  2. new Home Office guidance on right to work checks, available here
  3. a new checker tool (available here) as part of its public information campaign, “Get Ready for Brexit” to prepare the public and business owners for Brexit (see here).

New Policy Paper: No-deal

This sets aside the previous policy that was announced by the Home Office in late August, which inferred that there would be an end to freedom of movement immediately after Brexit.

The new Home Office policy paper says that in the event of a no-deal, EU citizens and their families who are living in the UK before exit day (currently 31 October 2019) will have until 31 December 2020 to apply for settled status.

Those arriving after exit day will have until the same date to apply for European Temporary Leave to Remain (Euro TLR), which will give them the right to live and work in the UK for three years.

EU citizens and family members who hold Euro TLR can use this status as a “bridge into the new immigration system”. Someone with Euro TLR would still need to meet the criteria for leave to remain under the future system. This means that holding Euro TLR may not be enough to secure the right to stay once the three years expire. Those who do not apply for Euro TLR (or status under the future immigration system) will be required to leave the UK by 31 December 2020.

This means that, at least until 31 December 2020, EU citizens and their eligible family members can enter and reside in the UK after Brexit without the requirement to apply for any immigration status at all.

From 1 January 2021, those without pre-settled/settled status or Euro TLR will need to apply for a visa under the new immigration system to be able to stay in the UK legally.  This is likely to be a “points-based immigration system” covering both EEA and non-EEA nationals. The Government has commissioned the independent Migration Advisory Committee (MAC) to consider salary thresholds as well as conduct a review of the Australian immigration system and similar systems to make recommendations for the new immigration system. The MAC has been asked to report in January 2020.

New Guidance on Right to Work Checks: No-deal

The new Home Office guidance confirms that in the event of a no-deal, right to work checks will remain unchanged until 31 December 2020.  All EU citizens will continue to be able to show their passports or national ID cards.

Those with pre-settled/settled status or Euro TLR can choose to use the online checking service, although employers cannot require them to do so.

Non-EU family members will continue to be able to use their Biometric Residence Cards (BRCs). Under current rules, those with BRCs can use either manual or online checks. Non-EU family with pre-settled or settled status can also use online checks on that basis.