EU employees’ status in UK will not change before 2021, says government

Home Office attempts to offer clarity after week of confusion, but employers’ groups remain concerned 

The employment status of EU nationals arriving in the UK will not change until at least 2021, the government has said, as it attempted to draw a line under days of uncertainty and speculation that employers would have to begin enforcement of new immigration rules as soon as next year.

The Home Office yesterday updated its EU Settlement Scheme: employer toolkit to advise that the rights and status of EU nationals in the UK would remain unaltered until the two-year post-Brexit transition period had ended, regardless of whether the UK left the European Union with a deal covering future freedom of movement.

It added that employers “would not be expected to differentiate between resident EU citizens and those arriving after exit” even in the event of a no-deal Brexit

The news calmed employers who had been concerned by statements made by immigration minister Caroline Nokes. On Tuesday, she told the home affairs select committee that if there was no Brexit deal, employers would have to check whether EU citizens arriving in the UK after the March 2019 EU exit date had the right to work – even though no future right-to-work regime would have been established at that point.

A Home Office permanent secretary told MPs the same day that the prime minister would want freedom of movement “turned off” at the point of a no-deal Brexit, which would be achieved through secondary legislation.

On Thursday, however, home secretary Sajid Javid told ITV’s Peston there would be a “sensible transition period” that would allow EU nationals to continue to enter and work in the UK post-Brexit.

“If there’s a no deal, we won’t be able to immediately distinguish between those Europeans that were already here before March 29 [2019] and those who came after – and therefore, as a result, I wouldn’t expect employers to do anything different than they do today,” he added. 

“There will need to be some kind of sensible transition period. I mean, these are the kinds of things I’ve been working on for months and months.”

Employers’ groups, however, suggested the differences between statements from different branches of government had to be resolved as a matter of urgency.

“While businesses are resilient, this continuing uncertainty has the potential to damage the country’s prosperity,” said Sophie Wingfield, head of policy for the Recruitment and Employment Confederation (REC).

“It is essential that the government provides clear guidance to businesses and individuals as soon as possible on what a no-deal scenario would mean. This will allow both employers and EU nationals to plan accordingly, and protect both the success of their businesses and the UK labour market,” she added. 

“Employers, recruitment agencies and representative bodies also have a key role to play in disseminating the latest information and practical guidance on settled status to the individuals and businesses they work with.

“European workers are a vital part of the UK’s workforce, especially in sectors which are already seeing staff shortages such as hospitality, construction and logistics.”

Gerwyn Davies, the CIPD’s senior labour market adviser, emphasised that there was no cause for alarm.

“Ultimately, the Home Office has reassured employers by saying that they won’t be subject to these right to work checks, he told People Management.

“Free movement effectively will continue, even if there’s a no-deal.” 

The 3.5 million EU citizens currently living and working in the UK will all have the opportunity to apply for settled status granting them indefinite leave to remain in the country. 

The government has announced that its post-Brexit migration policy will be based on skills, with priority given to high-skilled workers. Further details are expected to emerge over the coming months, but Davies urged businesses employing primarily low-skilled workers to be prepared for the greatest post-Brexit impact.

"EU nationals who have been living here for five years and can satisfy other eligibility criteria, will be able to apply for settled status under the EU Settlement Scheme,” said Kathryn Fielder, senior associate at B P Collins. “This will be fully open for such applications by 30 March 2019. Such applications will initially be voluntary, but then mandatory from 1 January 2021. All applicants will have to prove eligibility including that they have lived in the UK for five years without significant absences.

“Those EU nationals with less than five years’ residence in the UK are able to apply for so-called pre-settled status. Again, these are initially voluntary but mandatory from 1 January 2021.  

“The government say its intention is to implement this regardless of whether agreement is achieved with the EU. Therefore, even if there is a no-deal Brexit, EU nationals and their families already residing in the UK are expected to have their rights protected.  

“However this is based on the government’s intentions, which may change, and this also ignores the practical issues surrounding the sudden influx of work in the Home Office in dealing with large numbers of applications and applying complicated rules and criteria, without being given significantly increased resource to do so. Only time will tell if this is feasible or achievable."