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This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
There is continued uncertainty surrounding whether the UK will exit the EU on 31 October, with or without a deal, and the impact this will have on the rights of EU nationals to migrate to the UK to work. The uncertainty is particularly challenging for employers who are unsure what their obligations may be post-Brexit.
A particular concern for many employers is how the end to EU free movement will affect carrying out right to work checks and the obligation to prevent illegal working.
Under the Immigration, Asylum and Nationality Act 2006, employers face civil penalties and potentially criminal sanctions if they employ an individual whose immigration status does not permit them to work in the UK or to carry out the particular work in question. Employers will be excused from sanctions if they can show they carried out prescribed document checks (i.e. ‘right to work’ checks) and retained documentation to prove this. The Home Office has very detailed rules on how and when these checks must be carried out and what evidence must be retained.
Currently, EU free movement means that any EU citizen can live and work in the UK without a work visa. EU citizens can demonstrate their right to work simply by presenting their passport or national identity card to their prospective employer. However, if the UK leaves the EU this is likely to change.
EU citizens already in the UK on the Brexit date
Deal or no deal, the government has said that the EU Settlement Scheme (which is already open) is here to stay.
EU citizens currently living and working in the UK before the Brexit date should apply under the EU Settlement Scheme to register their status before 31 December 2020. They will be granted either settled or pre-settled status (depending on how long they have lived in the UK at the time they apply), giving them the right to continue to live and work in the UK.
We recommend that EU citizens already in the UK apply under the EU Settlement Scheme before 31 October 2019, due to concerns about potential difficulties with re-entering the UK after this time if not registered under the Scheme.
EU citizens arriving after the Brexit date
Under the government’s latest proposals, free movement will effectively continue up until 31 December 2020, so that EU citizens can arrive in the UK as they do now and continue to work in the UK without restriction until that date.
The government is proposing to introduce a European Temporary Leave to Remain scheme (Euro TLR Scheme), under which EU nationals who relocate to the UK for the first time after Brexit day (currently set for 31 October 2019) have the option to apply for a 3-year temporary immigration status. If granted, it will give them a formal immigration status in the UK for 3 years.
EU citizens who decide not to apply for Euro TLR will need to apply for a different immigration status before 31 December 2020. If they do not or cannot, they must then leave the UK by that date.
EU citizens who do apply for Euro TLR will subsequently need to apply under the UK’s proposed new (but yet to be determined) immigration system, before their 3 years' leave expires. If they switch status to a category under the new immigration system which leads to settlement (indefinite leave to remain), they can use the time spent with Euro TLR towards that settlement application – normally after a total of 5 years in the UK.
Right to work checks
The Home Office has said that employers will not be required to make the distinction between EU nationals who moved to the UK before or after Brexit until the proposed new points-based immigration system is introduced with effect from January 2021.
Indeed, it would be extremely challenging for employers to distinguish between EU nationals who enter the UK after Brexit, and EU citizens who are eligible for but yet to apply to the EU Settlement Scheme.
This means that until 31 December 2020, checks on an EU national’s right to work should be undertaken as they are now. All EU nationals will be able to prove their right to work by providing their passport, national identity card, or their digital status granted under the EU Settlement Scheme or the Euro TLR scheme.
However, when the new points-based immigration system is introduced from January 2021, employers will need to check that an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. The details of the new system, and how this will operate, remain to be seen.
This will be of some reassurance to employers that nothing will change overnight and, at least until January 2021, right to work checks on EU citizens will continue to operate in the current way.
However, it is important that employers take proactive steps to prepare for the potential effects of Brexit as soon as possible to minimise any negative impacts. In addition, employers can also encourage and support their European employees to register under the EU Settlement Scheme, if they are eligible, before 31 October 2019.
NB: this information is correct as at 10 September 2019 and may be subject to change