Comment: Brexit, and the ins and out of employing EU staff

Concerns held by many business owners turned to relief, says Smith. Picture: contributed.

A new Immigration Bill, which is currently before the UK parliament, will repeal the 2016 Immigration (EEA) Regulations, therefore ending the existing free movement to the UK for EU nationals.

However, concerns held by many business owners turned to relief when it emerged that rather than removing the ability for EU nationals to come to the UK to work and study, the new UK immigration rules will in fact provide a way for this to happen – and in a way more generous than might have been expected.

The UK government has confirmed that EEA and Swiss nationals (“EU nationals”) resident in the UK before 29 March will be able to apply for either settled or pre-settled status under the EU Settlement Scheme until 31 December 2020 in the event of a no-deal Brexit.

However, newly-arrived migrants who arrive between 30 March 2019 and 31 December 2020 from the EU will be entitled to apply for time-limited permission to live, work and study in the UK, even in the event of a no-deal Brexit, the government has said.

It is proposed that EU nationals will be able to visit, study and work in the UK without having to formally apply for immigration status during this period. They will have a three-month period in which they are able to apply for a new three-year European Temporary Leave to Remain immigration status. This new immigration status is intended as a transitionary measure for EU nationals, ahead of the entry into force of the UK’s planned new skills-based immigration system in 2021.

The ability for new arrivals to obtain a leave that enables them to remain and work in the UK for up to three years if they arrive in the UK between 30 March 2019 and 31 December 2020 will therefore be welcome. It would therefore seem possible for new EU arrivals in December 2020 to still be in the UK and working until December 2023 with the new European Temporary Leave to Remain.

The potential ability for EU nationals who hold European Temporary Leave to Remain status to move into a relevant category under the new border and immigration system in force from 2021 could also be helpful for some employees and employers.

The government has stated that employers will not be asked to start distinguishing between EU nationals who have just arrived and those who were resident before Brexit when carrying out right-to-work checks. This may appear helpful but it does not take account of the fact that the ability of individual EU employees, in a post-Brexit UK, to remain living and working in the UK will vary depending upon their exact status.

Individuals granted European Temporary Leave to Remain status will be able to stay in the UK for 36 months from the date of their application. Those who wish to stay in the UK for longer than 36 months will need to apply for an immigration status under the planned new skills-based immigration system once it comes into effect from 1 January 2021.

Applications for European Temporary Leave to Remain status must be made within three months of arrival in the UK and a fee, which will be confirmed at a later date, will be payable. Applications must be made online, and applicants will be required to prove their identity and declare any criminal convictions during the application process.

Those granted European Temporary Leave to Remain status will also be able to bring immediate family members who are EU nationals to the UK, but family members who are not EU nationals will need to apply in advance for a family permit.

Euan Smith, partner and corporate immigration specialist at law firm Pinsent Masons