Comment: Need for clarity on ‘no-deal’

Elaine McIlroy is a partner and immigration law expert at Weightmans LLP in Glasgow. Picture: contributed.
Elaine McIlroy is a partner and immigration law expert at Weightmans LLP in Glasgow. Picture: contributed.
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Crashing out of the EU without a deal seemed like an impossibility six months ago, but we’re now in the precarious position where the UK Government is outlining guidance to prepare for just such an eventuality.

However, there has been little detail on the status of EU nationals currently living and working in the UK if we leave the EU without a deal.

Leaving the stress this is undoubtedly causing EU nationals to one side, Scottish businesses need time to prepare for a no-deal outcome. Education, hospitality, financial services, healthcare and distribution are but a few key Scottish sectors that rely heavily on European workers.

In June, Whitehall issued a statement of intent outlining a transitional period until 2020 in which EU nationals that wish to remain in the UK are given the opportunity to apply for settlement – stressing there will be no change to the status quo until 2021. This is only a statement of intent, and one that is dependent on the UK reaching an agreement with Brussels. If we leave without one, the UK government will have little time to legislate an alternative.

Theresa May did recently reassure EU nationals living in the UK that “even in the event of no deal your rights will be protected”. But it is unfair to ask businesses to review their recruitment strategies and operational resourcing on this basis, without any guidance on what plan B would look like. If transitional arrangements are to be proposed, the UK Government needs to stop dragging its feet and confirm this.

Mr Raab’s reluctance on this front is, to some extent, understandable. The UK Government wants any rights it gives EU nationals to be reciprocated – there is, after all, a large UK population living and working on the continent. But it is simply wrong that political manoeuvring should put businesses in an uncertain position. If we left without a deal, The EU Withdrawal Act could preserve the rights of EU citizens resident in the UK in the short term, but the UK Government hasn’t said if it will choose to rely on this.

There is also the question of EU nationals wanting to come to work in Scotland in the future. A recent report from the Migration Advisory Committee recommended that they shouldn’t receive preferential treatment if the UK is able to decide on an immigration system without reference to the EU post-Brexit. That could mean EU citizens are subject to an income threshold on foreign workers obtaining visas - which could lead to a crippling skills shortage for several Scottish industries.

As we hurtle towards March 2019, Theresa May’s Government has a lot on its plate, but it cannot ignore the needs of businesses and the EU nationals that have contributed so much to our economy. Both deserve better.

Elaine McIlroy is a partner and immigration law expert at Weightmans LLP in Glasgow.