The employer implications of life after Brexit

The final contents of the Brexit withdrawal deal will be critical for employers of EU citizens in the UK, as Janette Protheroe reports

The Brexit deal vote on 11 December will be a critical day not just for Theresa May and the future of her government, but also for UK employers wanting to know how they deal post-Brexit with employees who are EU citizens living here. 

Depending on whether the withdrawal agreement is ratified by parliament or whether the UK crashes out of the EU on 29 March 2019 without a deal, there are potentially two very different scenarios that face EU citizens living in the UK.  

Under the terms of the withdrawal agreement, provision has been made for EU citizens living in the UK to obtain settled status in the UK or limited leave to remain under the EU settlement scheme (which now forms part of the immigration rules). This means EU citizens would have until 30 June 2021 to apply for this new status during the so-called transition period, which will run from 30 March 2019 until 31 December 2020. Furthermore, under the terms of the withdrawal agreement, EU citizens and their family members will be able to continue to come to the UK to live and work under the specified provisions throughout the transition period.

In the event of a no-deal Brexit, the position is less clear. Although there have been various assurances made by the Home Office that the EU settlement scheme will remain in place, there has still been no formal confirmation of this. And while the prime minister has stated on numerous occasions that EU nationals currently living in the UK will continue to have the right to remain in the UK post-Brexit, what the position will be for new EU arrivals to the UK after Brexit is unknown. The government has remained completely silent on whether or not the EU settlement scheme will remain in its current format under a no-deal Brexit scenario, or whether it will only apply to EU citizens living in the UK up to Brexit day.

The problem for employers

This all begs a number of questions for employers, who need more certainty for people planning. First, they need to know whether they can continue to recruit EU nationals arriving in the UK after Brexit day and if so, on what terms. Second, they need to know how they are going to be able to differentiate between those who arrived before and those who arrived after Brexit, when conducting right to work checks.

When immigration minister Caroline Nokes was questioned by the Home Affairs Select Committee on 30 October she said nothing to appease employer concerns on the latter point. She would not confirm that employers would not have to differentiate between EU nationals arriving pre and post Brexit and was vague about whether there would still be a transition period and if so, how long this would last. She did, however, say that the immigration bill due to be published later this year would be brought forward and also suggested that a registration scheme for new arrivals could be introduced for those wishing to stay more than three months.

Subsequent comments by Hilary Bagshaw of the Home Office and home secretary Sajid Javid have been a little more helpful, suggesting that following Brexit, EU citizens will continue to be able to evidence their right to work here by showing a passport or national identity card.  

But what about the future of free movement? Ms Bagshaw went on to say that free movement will end when we leave the EU. However, things may be less clear-cut than that. Many believe that until the new immigration system is rolled out following the publication of the immigration bill, the most likely scenario is that free movement will effectively continue in all but name. Mr Javid has also made vague reference to the need for a sensible transition period, so it can only be hoped that the government will be pragmatic.

The CBI has already called on MPs to listen to business in support of Theresa May’s Brexit deal. The economic and trade implications are not the only reason why employers will be watching the outcome closely. 

Janette Protheroe is a professional support lawyer in the immigration law team at Kingsley Napley