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“Ending free movement”: what is changing?

  • United Kingdom
  • Employment law
  • Global mobility and immigration

20-08-2019

Reports early this week indicated that the new Home Secretary intends to “end free movement” to the UK of EEA citizens immediately in the event of no-deal Brexit. This has caused widespread alarm and was clarified by a Home Office Fact Sheet on Monday. What has changed?

Three themes are clear from the statement:

The EU Settlement Scheme will continue, deal or no deal, for those resident in the UK prior to the Brexit date. EEA and Swiss citizens living in the UK by then will have until at least 31 December 2020 to apply. Their entry to the UK, for work or pleasure, in the interim should not be impacted.

The European Temporary Leave to Remain scheme is likely to be abandoned. This would have allowed EEA national arriving in the UK after Brexit day to apply for permission to stay in the UK to live, work or study for three years as a transitional measure in the event of no deal Brexit. The Home Office now states that the arrangements for people coming to the UK for longer periods of time and for work and study after Brexit day will change, although it is not clear how. This change will not impact EEA nationals in the UK before Brexit day who will remain entitled to use the EU Settlement Scheme as indicated above.

A new immigration system will be introduced before 31st October in the event of no deal. The previous Home Secretary advised that ‘there will need to be some kind of sensible transition period’ in the event of no deal, but the Home Office has now been tasked with implementing border restrictions immediately on the first day of no-deal Brexit instead.

The briefings and announcement do not mention how right-to-work checks would be made on EEA citizens immediately after Brexit day in the event of no deal. This will be of major concern to many employers who had understood the issue was resolved by announcements earlier this year; currently there is no easy way to distinguish between EEA citizens who qualify for, but have yet to apply for, settled status and others. The status of frontier workers and British citizens abroad who are likely to face reciprocal treatment is another area which can be described, as best, as, unclear.

There are major practical and legal barriers to introducing a new immigration system prior to 31st October 2019 and it remains to be seen how the Home Office proposes to do so. They advise further details about this will be forthcoming soon. Employers most impacted by these changes should pay careful attention to announcements about immigration in forthcoming weeks.

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