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What immigration changes should we expect in the UK from Brexit?

  • United Kingdom
  • Brexit
  • Employment law

20-11-2018

The Draft Agreement on the withdrawal of the UK from the European Union was published on 14th November. This contains provisions relating to Citizens’ Rights and how these will change from 29th March. What are the immigration provisions in the Draft Agreement? Perhaps more pertinently at the time of writing, what would be the legal position of EU citizens seeking to live and work in the UK if this Draft Agreement is rejected by Parliament and no subsequent deal is reached?

If there’s a deal

Part Two of the Draft Agreement contains the relevant Citizens’ Rights provisions which will take effect on 29th March should the Agreement be adopted.

Transitional immigration arrangements would apply between the date of Brexit, the end of free movement (31st December 2020) and a deadline to apply for “settled status” (30th June 2021). Neither EU citizens currently living and working in the UK nor those seeking to do so before 2021 would be adversely impacted if this takes effect. There would be an obligation on EU citizens, other than Irish citizens, to apply for “settled status” by 30th June 2021. This should be granted to those resident for five years or more; others may receive “pre-settled status”, the equivalent of a five year visa, after which permanent residence would be possible. Settled status appears straightforward; applicants may apply via an app and need only submit a scanned copy of their passport and their National Insurance number and as evidence of residence in the UK. It is not necessary to “qualify” for the right to settled status by having worked or studied in the UK; establishing identity and nationality, residence in the UK and an absence of disqualifying factors (such as a serious criminal record or security risk) will be enough.

If there’s no deal

The provisions in the Draft Agreement would no longer take effect if this is not approved so, as of 29th March 2019, EU citizens may be subject to new immigration requirements.

The European Union (Withdrawal) Act would take effect on the UK leaving the EU. This Act preserves law derived from EU provisions until alternative provision is made. The Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) allow EU citizens to live and work in the UK at present, so those provisions would remain until any further legislation were implemented. We would, however, anticipate an end to the principle of free movement shortly after the UK’s departure from the European Union which is a significant issue for those European Union citizens seeking residence in the UK. However, the Home Office has advised that the rights of residents in the UK before 29th March 2019 will be protected; all will have the opportunity to obtain permanent residence until 30th June 2021. For individuals arriving after 29th March, more restrictive immigration requirements may be introduced. Further information about this is anticipated in a long-delayed White Paper, now expected to be published in early December.

British citizens living in EU countries may be adversely impacted by no deal being agreed. In the event of an agreement, reciprocal measures regarding retention of rights and the transition period would take effect. British citizens may otherwise require permission to work, visas and local registration in member states to continue working after 29th March 2019.

Comment

The current consideration of the Draft Agreement presents major uncertainty for employers and employees.

We recommend employers continue to communicate openly and actively to current EU-citizen employees. For British citizens in Europe there has been equal attention to the detail as local laws change over the next six months.

For more information contact

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