Whilst the Home Secretary had previously proposed that EU free movement rules would end immediately in the event of a no-deal Brexit on 31October, presenting a cliff-edge for free movement at the point at which the U.K. leaves the EU, the Government has now confirmed in its updated policy paper that a transition period will apply in the event of a “no-deal” Brexit. Whilst the Government is yet to set out details of the new, points-based immigration system to apply from 2021, the (albeit relatively short) transition period will give businesses who employ EU staff a longer period of time (until January 2021) to adapt to the ending of free movement.
The current, updated Government guidance can be summarised for businesses that employ EU staff as follows:
- The responsibility will be on the EU citizens and their family members who arrive in the UK during the transition period (i.e. after Brexit but before 31 December 2020) to apply for leave (under the Euro Temporary Leave to Remain (“Euro TLR”) scheme that provides temporary leave for 36 months, or the new immigration system that provides indefinite leave, that will apply from January 2021) if they want to stay in the UK beyond 31 December 2020. If they do not apply by that time, in principle they would be working illegally, but the employer will have no obligation to check that, because it will still be able to employ someone based solely on their EU passport or EU identity card, if it was checked before their employment started during the transition period. At present, that would be the only right to work check required.
- Employers will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the new, points-based immigration system is introduced from January 2021. From 1 January 2021, employers will need to check that, for any new recruitment, an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card.
- For EU citizens who were resident in the UK before Brexit, they have until 31 December 2020 to apply for the EU Settlement Scheme.
- For EU citizens who arrive in the UK after Brexit, they have until 31 December 2020 to apply for the new Euro TLR scheme or under the points-based immigration system that will apply from January 2021.
- For EU citizens recruited before 1 January 2021, employers can continue to rely on the existing right to work checks they carried out when they recruited, based solely on their EU passport or EU identity card.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.