As we head for the 31st October without a secured deal for Brexit, hopefully the following practical steps will be useful for what employers can do now to prepare.
The Settlement Scheme for those EU citizens in the UK on Brexit
The Scheme opened fully on 29 March 2019 and it enables:
- Those EU citizens who have been living in the UK continuously for five years to apply for ‘settled status’. The deadline for applications if we do not secure a deal will be 31 December 2020.
- Those EU citizens who arrive before exit day (or before the end of the Implementation Period if the Withdrawal agreement is in place), but who have not been here for five years, to apply for pre-settled status.
- Five years’ continuous residence means that for five years in a row the person has been in the UK for at least 6 months in any 12 month period, except for: one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting), or compulsory military service of any length.
- The application process for settled and pre-settled status is free. There is Assisted Digital support for applicants in the UK who do not have the appropriate access, skills or confidence to complete the form.
- Irish citizens do not need to obtain settled status but other EU citizens, even those with Permanent Residence, need to apply.
- Employers may consider bringing forward start dates, where possible, to before 31 October 2019, if they have new employees who may need to apply for pre-settled status
Right to work checks
Government guidance issued on 1 April 2019 states that until 1 January 2021, EU, EEA and Swiss citizens will continue to be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card, and this remains the same if the UK leaves the EU without a deal.
EU citizens arriving post Brexit
The Immigration (European Economic Area Nationals) (EU Exit) Order 2019 has been made which provides that:
- EEA (which includes EU countries and Iceland, Liechtenstein and Norway) and Swiss citizens who arrive after exit day (until 31 December 2020) and wish to stay longer than three months will need to apply to the Home Office for European Temporary Leave to Remain (ETLR) within three months of arrival.
- Subject to identity, criminality and security checks, leave to remain will be granted for 36 months which will include permission to work and study.
- EU citizens wishing to stay for longer than three years will need to make a further application under the new skills-based future immigration system, which will begin from 1 January 2021.
An employer toolkit has been produced to help equip employers with the right tools and information (including an employee briefing pack) to support EU citizens and their families to apply to the EU Settlement Scheme.
Employers should consider what steps they may need to take to protect data flows if we end up without a deal. Further information in respect of this can be found at: https://www.gov.uk/guidance/using-personal-data-after-brexit
The rules for British Citizens travelling to Ireland won’t change. For other EEA countries and Switzerland, employees will be exempt from visa requirements for up to 90 days in a 180 day period. But British Citizens will not be able to undertake paid work (although this doesn’t include meetings). Employers will need to check the impact of the business trip and whether the employee will need work permissions if these are out of scope. Importantly, passports must be valid for 6 months at the time of travel.
This is an information note only, but please do not hesitate contact us on our advice line if we can assist you further.
In giving comment and advice in the article, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss, we would be pleased to assist you.