Brexit and the Movement of EEA and Non-EEA Workers

By Harmajinder Hayre, Ward Hadaway

The date for Brexit is now 31 October 2019; although uncertainty still prevails, the UK’s new Prime Minister is pushing for a no-deal Brexit. Measures are in place to ease the transition for UK-based employers relying on EEA workers on a temporary or permanent basis, in addition to revised rules which will come into effect in the future for non-EEA workers.

EU Settlement Scheme

The EU Settlement Scheme (the “Scheme”) has been introduced to enable European Economic Area (EEA) citizens and their family members to remain in the UK after its withdrawal from the EU. In the event of a deal, EEA citizens and their family must arrive in the UK by 31 December 2020 and submit a settlement application prior to 30 June 2021. In the event of no deal, applications must be submitted by 31 December 2020 by applicants who arrived in the UK by 31 October 2019.

Applicants with five or more years’ continuous residence in the UK will be granted “settled status”, allowing them to remain indefinitely; whilst applicants with less than five years’ continuous residence will be granted “pre-settled status”, allowing them to remain in the UK for five years. After completion of five years’ continuous residence they can switch to settled status.

Businesses looking to recruit or transfer staff to the UK post- Brexit must be aware of these dates and ensure that staff already in, or moving to, the UK apply to register their right to remain in the UK.

European Temporary Leave to Remain Scheme

It has recently been reaffirmed that free movement rules will continue if the UK leaves the EU without a deal and that another immigration scheme, called the European Temporary Leave to Remain Scheme, will be introduced. This means that EEA citizens arriving in the UK from 01 November 2019 will be able to stay in the UK on a temporary basis and choose to apply under this new scheme if they wish to permit them to stay for up to three years. After expiry of this period they will need to apply for a new visa.

This will allow businesses to easily move staff to the UK on a temporary basis after the transition period ends but does not lead to the individual obtaining the right to remain in the UK permanently.

Revised Immigration Rules: EEA and Non-EEA Workers

The UK government has set out its proposal on the UK’s future skills-based immigration system, which is expected to apply from 01 January 2021, recent announcements, however, indicate that this proposal may well undergo significant reform. It aims to reduce net migration to “sustainable levels” and apply the same rules and criteria for both EEA and non-EEA workers.

Currently, the main work-based route for non-EEA workers is the Tier 2 visa which requires sponsorship from a UK employer with a sponsor license and, subject to some exemptions, a minimum salary of GBP 30,000, which may be relaxed in the future. The new rules already increase the range of roles eligible for sponsorship to include intermediate-skill level and not just high-skill level roles. Low-skilled roles will be subject to a separate, temporary visa route.

With the UK’s prime minister publicly endorsing an “Australia-style points-based system” where applicants score points based on characteristics such as age, English-language skills, experience, and qualifications, the extent of the changes to the UK’s immigration system remains uncertain. However, whether there is a deal, or no-deal, fundamental changes post-Brexit are expected.

Key Points to Consider

  • UK leaves the EU with no deal: EEA citizens must be living in the UK by 31 October 2019 and apply for settlement by 31 December 2020.
  • UK leaves the EU with a deal: EEA citizens must be living in the UK by 31 December 2020 and apply for settlement by 30 June 2021.
  • Business Planning: consider recruitment pipelines and skills shortages in the business and the likely implications of Brexit to your workforce sooner rather than later.
  • Sponsor Licences: consider obtaining sponsor licences now to avoid the rush later in the year and the likelihood of increased processing times when the new rules come into force.

Harmajinder Hayre

Harmajinder Hayre

GGI member firm
Ward Hadaway
Law Firm Services
Newcastle upon Tyne, Leeds, Manchester, UK
T: +44 191 204 4000
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Ward Hadaway is one of the largest full service law firms in the North of England, with a reputation for quality, innovation and a practical approach to meeting their clients’ needs. With 90+ partners and over 450 staff, the firm’s approach of partner-led relationships with all clients is supported by a resource that has real strength in depth.

Harmajinder Hayre is the National Head of Employment and Immigration Department at Ward Hadaway.

Published: Labour Law Newsletter,  No. 07, Autumn 2019 l Photo: Uwe Rieder

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