Free movement in a no-deal Brexit

UK home secretary Priti Patel recently announced that if we have a no-deal Brexit free movement will end on 31 October 2019, causing business some confusion and consternation. The government shortly thereafter changed its position, confirming that transitional arrangements would be put in place to cater for EEA nationals and their family members post-Brexit.

Further, it now looks like the White Paper outlining the proposed new immigration system, to commence in 2021, which was published under Theresa May’s government, will be revisited and amended. We don't yet know the extent of these amendments but the Migration Advisory Committee has now been commissioned to review systems used overseas, such as in Australia, to assess what could be adopted for use in the UK.

The toing and froing has caused some confusion, and businesses should be clear about the real picture.

Is free movement ending on 31 October 2019?

Yes. The legal concept of free movement will end on Brexit, as was always going to be the case. However, the right of free movement is now enshrined in UK law – as such EEA nationals will remain permitted to enter the UK for up to three months until such time as that is repealed. The Home Office has now confirmed that, in line with Theresa May's position, to remain beyond three months a transitional measure of European Temporary Leave to Remain, allowing EEA nationals to secure permission to live and work in the UK for up to three years on a much more relaxed basis than non-EEA nationals, will be put in place. At three years they would fall under the new system.

This is aimed at ensuring the tap of European workers is not switched off overnight. This will avoid immediate border disruption and difficulties for businesses reliant on EEA workers. The ease with which such individuals can remain in the UK beyond three years, and new entrants can come to the UK, will depend upon the specific rules of that system - which is expected to focus on high skilled and paid work.

What about EEA nationals and their family members already in the UK?

The statements made and resultant uncertainty relates to those arriving in the UK to take up residence from 1 November 2019. It remains the case that those already in the UK are eligible to apply under the EU settlement scheme for settled or pre-settled status. In the event of a no-deal Brexit, those in the UK by Brexit (11pm on 31 October 2019) have until 31 December 2020 to apply under that scheme. Similarly, if an eligible individual has not yet applied and leaves the UK for work travel or holiday, for example, they should not be prevented from re-entering on the basis of the end of free movement.

That said, we strongly advise that all eligible EEA nationals and their family members in the UK wishing to remain here post-Brexit apply as soon as possible. This should ideally be done in advance of Brexit to minimise the risk of any unnecessary questioning or challenges to re-entering the UK.

What implications could this have for businesses?

Confirmation that the government appears to have abandoned an immediate and abrupt end to free movement will be welcomed by businesses. Businesses have been preparing for Brexit on the understanding that transitional measures would apply. Although longer-term the recruitment of EEA nationals is likely to be more challenging and costly, particularly in the case of lower-skilled individuals, we are back to the position of having  until 2021 to prepare for that eventuality.

We need to wait and see what further statements come from the government as to the precise mechanics of the transitional scheme and the new system to be in place in 2021.

What should you do now?

The immigration situation is fluid at the moment, with much depending on the current political landscape, but we recommend that you:

• identify which employees are here under free movement, if you have not already;
• reassure existing employees that their rights are unchanged – they remain eligible to apply under the settlement scheme until 31 December 2020 (if there is a no-deal Brexit). They will not lose their status on 31 October 2019;
• encourage any employees who have not yet applied to do so without further delay, preferably pre-Brexit;
• remember your British national employees working elsewhere in the EU and support and reassure them as to their options;
• review your imminent and long-term recruitment plans from the EU – if you can accelerate any to bring appointments in ahead of Brexit we recommend you do so. For others, contingency plans should be made for greater restrictions in recruiting EEA nationals to work in the UK in future.

What other implications could this have?

It looks like we are going to end up with differing categories of EEA nationals in the UK - The fact that those already in the UK have until the end of 2020 to apply under the settlement scheme means, in practical terms, there will be no obvious way to distinguish between such legacy Europeans and those arriving post-Brexit. This could cause challenges for employers conducting right to work checks – although at present the Home Office guidance on this remains unchanged, and does not require additional checks against such individuals. It is difficult to see how such a position can be maintained.

It is important to remember the impact on British nationals looking to work elsewhere in the EU. If EEA nationals were to overnight be treated the same as non-EEAs, we should assume reciprocal restrictions will be applied to British nationals.

We recommend businesses take steps now, if they have not already, to prepare for the eventuality of a no-deal Brexit.

Editor's note 12.09.19: this is a version of a previously-published piece, updated to reflect changing developments.