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Immigration: What’s the deal when there’s No Deal?

Immigration: What’s the deal when there’s No Deal?

As the Brexit process grinds on, more attention has turned to thinking about the preparations that might be required for a ‘No Deal’ Brexit scenario – namely, a scenario where for one reason or another, the UK leaves the European Union without having formally agreed the basis of that departure.

If we compare a no deal Brexit scenario to the well known Who Wants to be a Millionaire gameshow, then the no deal scenario is the scenario where you leave with nothing. There is not a fall back position and we are not able to ‘bank’ some of what we have already gained. When we leave the EU with no deal, then the starting point for preparations is that we leave with nothing. We no longer retain any of the privileges that come with EU membership.

One obvious example of where this could prove complicated is in relation to EU free movement of people. EU and EEA nationals are currently able to live, work and study in the UK without the need for work permits or visas. They only have those rights because the UK is a member of the EU (and the associated European Economic Area if we are speaking technically). Americans, Canadians, Australians and other non Europeans more generally do not have those free movement rights in the UK. That is because the UK does not have free movement of people agreements with those countries in the way that we do with the EU. Nationals of those countries need visas in order to live, work or study in the UK.

The starting point for a no deal scenario is that EU free movement of people ends immediately when the UK leaves the EU. That is currently due to take place on 29 March 2019. EU nationals currently living and working in the UK could not be in the UK exercising free movement rights if free movement has ended. However, there is a recognition of the chaos that would result from rendering EU nationals effectively illegal in the UK. In the absence of a deal to agree otherwise and without a post Brexit visa system ready to apply to EU nationals after 29 March 2019, the UK has unilaterally made arrangements to retain the ‘status quo’ for EU nationals living in the UK in a no deal Brexit scenario.

To achieve this, the UK has broadly incorporated the rights of EU nationals living in the UK into UK law through the provisions of the European Union (Withdrawal) Act 2018. Through this, the rights of those EU (and EEA) nationals already living and working in the UK are preserved and they will remain in the UK lawfully. That position however could change depending upon how EU/EEA countries treat British nationals living in their countries.

For those EU citizens already in the UK, the UK government has committed to implementing a mandatory registration scheme – the EU Settlement Scheme. This scheme will give eligible EU citizens either “settled” or “pre-settled” status depending on how long they have been in the UK.  If they have lived in the UK for 5 continuous years they will usually get “settled” status, entitling them to continue to live and work in the UK for as long as they like.  For those who have been in the UK for less than 5 years they usually get “pre-settled” status which allow them to stay until they become entitled to apply for “settled” status. 

The real problem is for those employers, businesses and families that need to bring EU nationals to the UK after 29 March 2019. The draft withdrawal agreement between the UK and the EU essentially preserved the free movement status quo until December 2020 to allow time for everyone to transition to a new post Brexit visa system and the EU Settlement Scheme as currently published would apply to any EU citizens arriving in the UK before the end of that transition period on 31 December 2020. A ‘no deal’ scenario would mean that this draft agreement is not agreed. That means that there would be no consensus or provisions regarding how EU/EEA nationals are treated when seeking to enter the UK when EU free movement has ended and vice versa.

Businesses may wish to audit their workforce to get a sense of how many of their current employees will be affected and, as far as possible, try to keep staff informed and engaged. It is also worth thinking more strategically about how best to deal with talent moving forward.

If you would like to discuss the potential impact of Brexit on your business or your Brexit planning, please do get in touch.

Jamie Kerr & Andrew Clark

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Burness admin