Brexit: from a slow drip to a full-on leak
27 September 2017
On 5 September 2017, the Home Office Post-Brexit Immigration Document was leaked to the public. The document – the exact publication date of which we do not know – provides a screenshot of government policy towards EU nationals and their non-EU family members. The document talks about how those individuals will be affected at three separate stages: (1) those in the UK ‘before exit’, (2) those who come to the UK during the ‘implementation phase’, and (3) those who arrive ‘after the implementation period’.
Broadly, when the UK formally exits the UK, there will be a two-year implementation period during which the government will ‘prepare for the end of freedom of movement’. This will involve processing settlement and temporary residence applications for those who arrived before the ‘specified date’, and registering all those who arrived after that date. Following that phase, the UK will repeal the EEA Regulations and UK domestic law will apply to EU nationals and their family members.
Coming to the UK ‘pre-exit’
Qualifying EU citizens and their family members in the UK before exit will be able to apply for settled status. Alternatively, if they do not qualify for settled status, they will be able to apply for temporary residence. It is likely, therefore, that a system will be set up though which qualifying EU citizens can obtain confirmation of their new status in advance of exit.
Non-EU family members of EU citizens will be granted ‘deemed leave’ and will be able to apply for settled status or temporary leave. If they wish to work or study, they will need to apply for a residence permit to demonstrate a right to work in the UK.
The ‘implementation phase’
After the UK leaves the EU, there will be a transitional implementation phase. EU citizens travelling to the UK as visitors will not require individual visas to enter. Also, during this period, EU citizens coming to the UK to work or study will not need individual leave to enter either – they will be able to enter the UK using their EU passports. EU citizens will also be able to enter the UK to take up self-employment or enter on the basis of self-sufficiency. This will be for a limited duration (an ‘unrestricted period’), which has not yet been decided.
While it is not yet clear, EU citizens might be required to provide finger scans at the border and it is likely there will be some form of electronic pre-clearance process.
The document highlights the following important points about EU citizens and their non-EU family members:
- EU citizens arriving during the implementation phase will need to register (i.e. obtain a residence permit) if they intend to stay in the UK on a long-term basis.
- EU citizens who remain in the UK beyond the limited duration permitted (without a residence permit) will be without leave to remain in the UK.
- EU citizens arriving during this phase and enter as workers, students, self-employed or self-sufficient are likely to be granted residence permits valid for up to two years. Those who enter the UK with a contract of employment in a ‘highly skilled’ role might be eligible for residence permits of between three and five years’ duration. Proof of the relevant activity will be required – e.g. a contract of employment if employed.
- The assessment of whether an individual is ‘highly skilled’ will broadly follow the UK’s current domestic immigration law.The residence permit will confirm entitlement to work and settle in the UK. The period that counts for settlement will start at the issue of the residence permit.
- Jobseekers will not be eligible to apply for residence permits.
- Non-EU family members will need to apply for permission to travel to and remain in the UK. This is likely to be similar to the current process of applying for a Family Permit, but will be mandatory.
- Non-EU family members will need to meet the requirements based on those that currently apply to family members of British citizens. Specifically, ‘family members’ will be limited to spouses, durable partners, children under 18 and adult dependant relatives.
Employers will still be required to check that individuals have a right to work in the UK, as is currently the case. Documents such as a valid EU passport or Home Office biometric immigration document will be acceptable. However, if an EU citizen continues working beyond the unrestricted period (without obtaining a residence permit), the employer will be liable for criminal sanctions if they know or have reasonable cause to believe that an EU citizen is working for them without permission. The EU citizen would also be subject to criminal liability.
As passports will not be stamped on entry to the UK, it will be very difficult for employers to know whether the EU citizen is working beyond their unrestricted period.
After the implementation phase
The UK is expected to become a signatory to the World Trade Organisation’s General Agreement on Trade in Services (GATS). Some existing commitments will continue, such as intra-company transfer employees coming to supply a service in the UK, or admitting a business visitor to sell services, such as short-term paid engagements.
Further than GATS, the UK is still considering its policy options. The document lists some possible immigration routes. For those in employment, employers might be required to conduct an equivalent to the Resident Labour Market Test. EU citizens might also be required to have job offers before they come to the UK. Low-skilled migration will likely be targeted specifically. Self-employed migrants will most likely be required to provide evidence of contracts.
While the leaked document provides some clarity as to the next stages in the UK’s exit process, a number of important decisions remain to be made.
With Brexit scheduled for 29 March 2019, there will be both long and short term legal implications for UK and international businesses.