Jessica Pattinson: Wait for Brexit clarity on immigration continues

Jessica Pattinson is head of immigration at commercial law firm Dentons www.dentons.com

This has been brought to the forefront following the recent scandal involving the Windrush generation, hostile environment and deportation targets, and continuing issues with doctors and other professionals not being able to obtain work permits under the Tier 2 quota. No one would blame EU nationals for growing increasingly impatient, or for having a lack of confidence in the government’s ability to resolve matters satisfactorily.

Brexit Day – 29 March, 2019 – is fast approaching, and it feels as though we are close to Brexit but at the same time, very far away. There has been very little progress on solving the issues with the Irish border and negotiations regarding the UK’s future relationship with the EU have barely begun. Of all the issues to be dealt with on Brexit, negotiations on citizens’ rights are perhaps most advanced, but there are still a number of key points to be clarified. We must also remember “nothing is agreed until everything is agreed”.

Of course, the issue is not only a worry for EU nationals living in Scotland and Britain – although theirs is a concern on a human scale. Many of their employers will also be concerned, as they have come to rely on an ability to recruit suitable talent from Europe’s vast reserves of labour.

All employers and their EU workers can do at this stage is consider what we do know – or we think we know. We do now have a few details of the government’s planned approach:

1) There will be a transition period for 21 months from Brexit Day on 29 March, 2019, until 31 December, 2020. For the duration of the transition period, free movement of EU nationals will continue.

2) EU nationals who arrive in the UK before the end of the transition period will be able to stay and after five years of continuous residence, they can apply for settled status.

3) All EU nationals living in the UK, as well as non-EU nationals sponsored by an EU national family member, will need to apply for new residence documentation. The Scottish Government has estimated that 219,000 EU nationals live in Scotland. With a further three million in the rest of the UK, the scale of this task is unprecedented.

4) Applications for residence documentation will start being accepted from September this year; although there will almost certainly be a phased approach to ensure that Home Office systems can manage.

5) The process is supposed to be easy, with people being encouraged to apply through a smartphone application. However, while the former Home Secretary Amber Rudd said the application process would be as simple as setting up an L.K. Bennett account, it emerged last week that the app won’t be available on Apple devices, despite half the adult population of the UK owning an iPhone. Presumably EU nationals who don’t own an Android device will apply via an alternative, non-digital route?

6) Nationals of Iceland, Liechtenstein, Norway and Switzerland – who are members of the EEA but not the EU – should be treated in the same way as EU nationals. While negotiations have not progressed with these countries the UK government has advised that they expect to extend the offer made to EU nationals to cover the EEA.

What we don’t know is what will happen from 1 January, 2021. As the negotiations between EU and the UK progress to discussing the future relationship, we should start to see glimpses of a post-Brexit immigration policy – and to what degree free movement is retained or not.

However, even the transitional details that have been published are not a done deal. Until the Withdrawal Agreement has been ratified, there may be changes to the position on citizens’ rights and to the transition period. So while there is sufficient clarity to start preparing for Brexit, Scotland’s EU citizens and their employers will effectively know nothing for certain until later this year.

Jessica Pattinson is head of immigration at commercial law firm Dentons www.dentons.com