LDSLWPADMIN

31 January 2020

Today, at 11pm, the UK will leave the EU, 3.5 years after the referendum on the UK’s membership of the EU. With the UK out of the single market, what are the steps that EEA nationals, their family members and UK employers can take to survive the short-term and long-term effects of Brexit on the UK immigration landscape?

Current position
EEA nationals and their family members have an automatic right to reside in the UK until free movement ends, subject to satisfying the relevant provisions of the Immigration (European Economic Area) Regulations 2016 (‘EEA Regulations 2016’). Their right to reside in the UK is not dependent on possession of any form of documentation evidencing this right.

The European Union Settlement Scheme (‘EUSS’) opened to applicants on 30 March 2019, allowing all EEA nationals and their family members who enter the UK before 1 January 2021 to apply for ‘settled’ or ‘pre-settled’ status to protect their right to reside, work and rent property in the UK. Applications to the EUSS are open until 30 June 2021.

The residence of any EEA national and/or family members who do not qualify for status under the EUSS and do not hold any other form of immigration permission under UK domestic law may be at risk of becoming unlawful from 1 January 2021. To avoid this risk and any resulting sanctions, EEA families and UK employers should consider taking the following steps if they have not already done so:

1. Analyse workforce composition
Employers should keep an internal HR record of all EEA staff and non-EEA staff who are residing in the UK as the family member of an EEA migrant. Where possible, the HR record should detail whether these staff currently hold any documentation under the EEA Regulations 2016 (such as a permanent residence certificate) and/or whether they have applied for and have been granted UK immigration status under the EUSS.

2. Make a note of deadlines
From a UK immigration perspective, perhaps the most immediate impact of the UK’s withdrawal from the EU with a deal is that free movement will end on 31 December 2020. This is the deadline for EEA nationals to be resident in the UK to qualify for immigration status under the EUSS. Whilst the deadline to apply under the EUSS is 30 June 2021, the best practice for those wishing to continue residing in the UK is to make an application as soon as possible.

Whilst 31 December 2020 is also the deadline to apply for documentation under the EEA Regulations 2016, generally individuals should not make applications of this type unless they will be immediately eligible for British citizenship following approval. If this is the case, due to the comparatively lengthy processing times, employers should try to ensure that all applications are made as soon as possible and ideally no later than 31 March 2020. This should allow time for the individual to subsequently apply for British citizenship prior to the end of free movement, if they wish to.

3. Pick the appropriate course of action
Given the complex nature of immigration rules, it may be advisable to obtain legal advice on the appropriate course of action for each individual staff member, particularly for multinational companies with a large workforce or for individuals who possess complex UK immigration or residence histories.

This advice would be particularly helpful to inform whether an individual may be immediately eligible for British citizenship following an application under the EEA Regulations 2016 or if s/he should instead apply under the EUSS to confirm their status in the UK.

4. Support and organisation
Employers should ensure that their EEA staff have access to the EUSS app so they can complete the identity checks. Employers should assist with the accessibility and provision of employment records, such as copies of employment contracts, P60s, previous pay slips or a letter of support, which may be required by staff when making the relevant application.

As overseas travel of more than six months in any 12-month period can affect eligibility for settled status under the EUSS, employers should bear this limit in mind when requesting overseas work trips, or secondments for EEA staff prior to an application being made.

5. Think long-term
The UK plans to introduce a new immigration system from January 2021. Currently, the total fees for a skilled worker from entry to permanent status in the UK could total approximately £11,000 over a five year period. Considering that applications under the EUSS are free, it would be advisable to consider accelerating future plans to employ EEA nationals in the UK where possible and to support them with information and guidance regarding the EUSS.

Finally, it is anticipated that the government will make detailed announcements on the shape of the new UK immigration system in Spring 2020. Employers should be alert to these and all other future government announcements so that they can take any required steps to legally maintain the employment of their current EEA staff and, significantly, to ensure business plans are in place to enable the mobilisation and recruitment of EEA nationals from January 2021 onwards.