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Rights of EU nationals: Clarity provided in case of no-deal Brexit

The government yesterday released a Policy Paper setting out its position on the right of EU nationals to remain in the UK in the event of a no-deal Brexit.

In light of the continued political uncertainty, this will no doubt be welcome news for those that currently employ a significant number of EU staff.

Earlier this year, the government published details of the EU Settlement Scheme – the agreed means by which the rights of EU nationals to remain in the UK would be secured post-Brexit.

The Settlement Scheme was very much predicated on the basis that the UK would secure a deal upon its exit from the EU.  However; recent negative reaction to the proposed Withdrawal Agreement amongst MPs has brought the possibility of a no-deal Brexit sharply into focus.

The intention is that the rules will operate in a similar manner to the Settlement Scheme, subject to the following key points:

  • The Settlement Scheme presupposed that there would be a Transitional Period from March 2019 to December 2020 where EU law would continue to apply in the UK.  A no-deal situation would result in no Transitional Period being implemented.  Under the Settlement Scheme as currently drafted, EU nationals resident in the UK on/before 31 December 2020 would be able to apply for settled or pre-settled status.  In a "no-deal" situation, the Scheme would require residence in the UK by 29 March 2019 – the point at which the UK will leave the EU. 
  • The criteria that must be met in order to secure settled/pre-settled status would otherwise remain the same as under the current Settlement Scheme proposals.
  • Whilst the Settlement Scheme would apply to those resident in the UK by 31 December 2020 in the event of a deal being agreed, the deadline for making applications would actually be 6 months later on 30 June 2021.  In a no-deal scenario, applications would have to be made by 31 December 2020 for those resident on/before 29 March 2019.  The government has confirmed that the Scheme will be fully operational by 30 March 2019.
  • Until 31 December 2020 in a no-deal scenario, EU nationals will still be able to use their EU passport or EU national identity card if they are asked to evidence their right to reside in the UK.  A new immigration system would be implemented from 1 January 2021 as originally planned. 
  • The Settlement Scheme was agreed in principle between the UK and all EU states – subject to the Withdrawal Agreement being agreed and ratified in full.  The Policy Paper conveys only the UK's position in a no-deal situation – it is not reflective of a position that has been agreed with the other EU states.  The Policy Paper at various points calls upon the EU member states to uphold commitments to citizens and explain "as soon as possible" how they will protect the rights of UK nationals resident in the EU in a no-deal situation.   

The government is still seeking reciprocal agreements with Iceland, Liechtenstein, Norway and Switzerland – nations who are not in the EU, but to whom the free movement principles of the EU apply.  The Policy Paper confirms that nationals of these countries will be entitled to remain in the UK post-Brexit and also notes that reciprocal commitments have been made by these nations.  However, no written agreements relating to this have yet been published. 

In the Policy Paper, the government refers to the possibility of a no-deal Brexit being "unlikely" on account of the UK and EU having "agreed a good deal for citizens".  The vast majority of press and commentary to date suggests that most Westminster MPs do not agree with these sentiments; whilst the Scottish Parliament has already voted against (albeit in a non-binding vote) the adoption of the Withdrawal Agreement.  The possibility of a no-deal Brexit is therefore very much on the table, with some even suggesting that remaining in the EU may still a realistic option.

In light of this continuing uncertainty, employers would be well advised to continue staff auditing processes in order to ascertain the number/identity of staff that are working in the UK under EU free movement rules.  It isn't possible at this stage to provide such individuals with definitive concrete assurances as to the means by which they can attempt to secure their future rights in the UK.  However, open dialogue and explanation that there will be a Settlement Scheme (in some shape or form) in either a deal or no-deal scenario will no doubt be welcomed by employees. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.


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