With just over two months to go until the UK is set to leave the EU, the new Government has thrown EU nationals (and their employers) a curveball with its announcement that new immigration rules for EU nationals following 31 October are in the pipeline.
The new plan is billed as an 'end to free movement'.
The previous Government had proposed transition arrangements to enable individuals and businesses to adapt to the UK's exit. EU citizens living in the UK prior to exit day would have until December 2020 to apply for EU Settled Status or Pre-Settled Status, while EU nationals arriving after exit day would be granted an initial 3 month visa and could then apply for European Temporary Leave to Remain. This would have allowed them to live and work here for 3 years. Now it appears that the position for post-31 October arrivals will be different.
Impact on businesses
It's not clear precisely what the new arrangements will be, but Home Office guidance suggests that the European Temporary Leave plan will be replaced. Many commentators have queried whether this is feasible in the time available but, if a new system which limits new arrivals' right to work is put in place, it could have a substantial impact on employers. They will need to distinguish between EU nationals currently here and those who arrive after 31 October (as the latter will presumably have more limited rights to work) – but in practical terms this will be very difficult unless the former have already applied for Pre-Settled Status or Settled Status.
This will be a major concern for sectors which rely on EU workers – particularly for businesses hiring extra staff in the run-up to Christmas.
What employers should do now
If a new scheme is being implemented, it will (hopefully) include some guidance for employers on carrying out right to work checks. As EU nationals who arrived after 31 October may not be eligible to work, employers will need to check whether any EU candidate has applied for status under the EU Settlement Scheme. If so – the employer is free to employ them. But if not, the situation will be trickier. Employers may find themselves having to verify candidates' immigration history – which may be complex. Employers will be caught between the need to avoid unlawful discrimination against non-UK candidates and to comply with their legal duty to prevent illegal working. We will keep you updated about any new guidance which clarifies the position.
The best advice that employers can give to EU nationals whom they already employ is to apply for Settled Status (or Pre-Settled Status) as soon as possible. The process to apply is relatively simple, free of charge and far outweighs the risk of not applying and being placed in a precarious legal position.
We can deliver bespoke training/clinics for staff to ensure that they understand how to apply – please contact Sam Murray-Hinde if you would like to discuss this or any other training needs you may have.