Employment

Last week the government published a new no-deal immigration policy paper setting out the arrangements which will apply to EEA and Swiss nationals moving to the UK after 31 October 2019.

EEA and Swiss nationals arriving in the UK after 31 October 2019: European Temporary Leave to Remain

For a period between exit day and 31 December 2020, EEA and Swiss nationals and their family members will be able to move to the UK and live and work here.  They will be able to evidence their rights via a passport or national identity card.

They will have the option of applying for a 36 month temporary immigration status called European Temporary Leave to Remain (Euro TLR). Applications for Euro TLR will not cost anything and will made after arrival in the UK – there will be no need to make any special arrangements in advance. According to the policy paper, applications will involve a simple online process and identity, security and criminality checks.

Applications for Euro TLR can be made until 31 December 2020 and will be voluntary. The benefit of applying is that EEA and Swiss nationals with Euro TLR will have a ‘bridge’ into the new points-based immigration system being introduced from January 2021 and will only have to apply when their 36 month Euro TLR expires (in other words they can stay beyond December 2020 even if they don’t meet the criteria for leave under the new system). If an application is then made for settlement any time spent in the UK with Euro TLR status will count towards the qualifying period (usually five years for indefinite leave to remain). Those who have Euro TLR will be able to use this secure digital status to establish their entitlement to work.

EEA and Swiss nationals who move to the UK after a no-deal Brexit and who don’t apply for Euro TLR will need to leave the UK by 31 December 2020 unless they have applied for a UK immigration status under the new points-based system or for some other visa.

EEA and Swiss nationals who move to the UK after exit day may be accompanied by their non-EEA or Swiss family members and provided they have a valid national passport and EEA family permit they will be able to stay until the end of 2020. Close family members (spouses / partners / dependent children under 18) can apply for Euro-TLR once their EEA / Swiss national sponsor has applied under the scheme.

Further details of the future points-based UK immigration system are expected to be announced during 2020.

EEA and Swiss nationals in the UK by 31 October 2019: EU Settlement Scheme

As set out in my earlier blog, Brexit and Immigration – Deal or No-Deal, EEA and Swiss nationals in the UK by 11pm on 31 October 2019 can apply for settled or pre-settled status under the EU settlement scheme. Settled status provides an indefinite right to remain in the UK. The deadline for applications will be 31 December 2020 in the event of a no-deal exit; and 30 June 2021 if the UK leaves the EU with a deal.

Right to work checks

It is unlawful to employ someone who does not have the right to work in the UK. Although there is no statutory obligation to carry out right to work checks (i.e. an employer can’t be fined or prosecuted for not doing so), there is a statutory excuse  against a civil penalty if the prescribed right to work checks have been carried out, using the acceptable documents listed by the Home Office. This should be done before an employee starts work and for some employees whose permission to work is for a fixed period of time, should be repeated during the employment.

If the UK leaves the EU without a deal,  when checking an applicant’s right to work, employers will not need to distinguish between EEA and Swiss nationals who moved to the UK before or after Brexit and that will remain the case until 31 December 2020.  Some changes will be made to the guidance on right to work checks to accommodate the new Euro TLR scheme.

Until January 2021, EEA and Swiss nationals will be able to prove their right to work by using their:

  • passport or national identity card if they’re an EEA or Swiss citizen;
  • digital status under the EU settlement scheme or Euro TLR scheme via the Home Office’s online right to work checking service; or
  • biometric residence card if they’re a non-EEA or Swiss citizen family member.

From 2021 employers will be under an obligation to check that all EEA and Swiss new recruits have a valid UK immigration status: a valid passport or national identity card will not be sufficient.

A return to post study work visas?

On a separate note, the government has also recently announced an intention to allow international students to work in the UK for two years following their studies. This news is likely to be welcomed by employers, international students and Universities alike  – it is likely to make the UK a more attractive place to study and will provide an additional stream of labour for employers.

If you have any queries, please contact Elaine McIlroy or Lynne Marr.  We are running Business Immigration seminars on Brexit and the future skills based immigration system: if you’d like to come along click here to register.

Elaine McIlroy

Partner at Brodies LLP
Elaine is a partner in Brodies employment team and she also heads the firm’s Immigration offering. She is dual qualified having worked in the City for several years and she acts for employers across the UK. Elaine advises employers on the whole spectrum of employment law issues but has a special focus on TUPE and strategic advisory work. On the immigration side, Elaine provides advice in relation to illegal working and civil penalties, business visitors, the points based immigration system and spousal/ partner visas, ILR and citizenship applications.
Elaine McIlroy