No deal means there is no longer an automatic right to free movement of persons. However, both sides are putting in place special provisions to provide for as much continuity as possible.
Current EU workforce in the UK
Under a no-deal scenario, EU citizens currently resident in the UK will not be required to leave, once the UK leaves the EU.
EU citizens resident in the UK at the time the UK leaves the EU will have until June 2021 to apply for the EU Settlement Scheme.
Successful applications to the EU Settlement Scheme will allow EU citizens to continue living and working in the UK after the UK leaves the EU.
The EU Settlement Scheme is a government scheme that can provide EU citizens currently resident in the UK with the right to continue living and working in the UK beyond June 2021.
It is free for EU citizens to apply for the EU Settlement Scheme.
The applications are handled online through a process that is quicker and simpler than other visa applications and the Home Offices are looking for reasons to accept applications.
The online application consists of three key stages:
- Identity check
- UK residency check
- Criminal record check
Successful applicants will be granted either ‘pre-settled status’ or ‘settled status’.
Successful applicants to the EU Settlement Scheme will be granted either ‘pre-settled status’ or ‘settled status’.
Settled status will be granted to successful applicants who can demonstrate five or more years of continuous residency in the UK. Those granted settled status can continue living and working in the UK for as long as they wish.
Pre-settled status will be granted to successful applicants who can demonstrate less than five years of continuous residency in the UK. Those granted pre-settled status can continue living and working in the UK for a further five years, allowing them to stay long enough to be eligible for settled status if they wish to remain in the UK indefinitely.
If someone is granted pre-settled status, they will be able to combine the time they spent in the UK before Brexit with the time they spent in the UK after Brexit to demonstrate the five years of continuous residency in the UK required for settled status.
1. An EU citizen has been resident in the UK for one year prior to Brexit.
2. They apply to the EU Settlement Scheme and are granted pre-settled status, giving them the right to stay in the UK for a further five years
3. After living in the UK with pre-settled status for four years, they become eligible for settled status as they can demonstrate five years of residence in the UK (i.e. one year before Brexit, four years after Brexit).
4. They successfully apply to upgrade to settled status, which gives them a permanent right to live and work in the UK.
Pre-settled status does not convert to settled status automatically and those with pre-settled status will need to apply to upgrade to settled status.
Some non-EU family members and partners of EU citizens will also be able to apply to the EU Settlement Scheme through their relationship with an EU citizen.
For those with pre-settled or settled status who have family currently overseas, these family members may be able to join them in the UK through the EU Settlement Scheme even if they are not in the UK before Brexit.
For close family (e.g. children, parents, grandparents) and current partners/spouses, where the relationship existed by exit day, the deadline is 29 March 2022.
For other dependent family and current partners/spouses, where the relationship did not exist by exit day, the deadline is 31 December 2020.
After these deadlines, family members would be able to apply through the applicable UK immigration rules but not through the EU Settlement Scheme.
EU Settlement Scheme employer toolkit: gov.uk/government/publications/eu-settlement-scheme-employer-toolkit
Gguide for those applying for the EU Settlement Scheme: gov.uk/eusettledstatus
EU immigration into the UK for work
EU citizens will be able to enter the UK by using an EU passport or national ID card until 31 December 2020.
EU citizens entering the UK after a no-deal Brexit will be able to live and work in the UK for up to three months from the date they enter the UK.
EU citizens intending to stay for more than three months will need to apply for European Temporary Leave to Remain (ETLR).
European Temporary Leave to Remain (ETLR) will allow EU citizens who want to live and work in the UK for more than three months after we leave the EU to do so.
Successful applicants will be permitted to live and work in the UK for 36 months from when their application is granted but this form of leave cannot be extended.
ETLR holders who wish to remain in the UK beyond the 36 months of their leave will need to apply under the new proposed immigration system to be introduced on 1 January 2021.
All applications will be online and will consist of an identity check and a criminal record check (the format is likely to be similar to the application for the EU Settlement Scheme).
There will be a small fee for applicants which is yet to be confirmed.
Further details are expected to be published by the government soon on how and where to apply if the UK leaves the EU without a deal.
Right to work checks
Until the new immigration system is introduced on 1 January 2021, an EU Passport or ID card will continue to be a valid document for a right-to-work check.
Employers will not be required to check that their employees have obtained settled status, pre-settled status, or ETLR (although new employees may also use these to demonstrate their right to work).
No retrospective right-to-work checks will be required by employers so long as the initial right-to-work check was completed correctly.
If an EU employee was found to be here illegally (e.g. they entered the UK after a no-deal Brexit and lived and worked in the UK for longer than three months without securing ETLR), it is unlikely the employer would be at fault, so long as the initial right-to-work check was completed correctly.
There may be exceptional circumstances in which an employer has knowingly employed individuals who have not obtained the necessary leave (for example, as part of wider labour exploitation), and could leave themselves open to prosecution.