At the eleventh hour, the UK Government goes back to the drawing board on no-deal immigration for Europeans

Hang on, is there not a no-deal plan in place already?

In the lead up to the original Brexit date of 29 March 2019, Theresa May’s Government set out via a policy document and information on GOV.UK how businesses and individuals should prepare for a no-deal Brexit, including plans for EU nationals arriving after the date of withdrawal. The information released (taking into account that withdrawal deals were later signed with the non-EU EFTA states) confirmed the following:

• EEA/Swiss nationals resident in the UK on exit day would be able to stay long term and apply for ‘settled status’ under the EU Settlement Scheme after five years’ residence in the UK
• The deadline to apply for  pre-settled or settled status would be 31st December 2020 instead of 30 June 2021
• EEA/Swiss nationals arriving after exit day would not be able to stay long term. They would however be able enter without any immigration restrictions and stay in the UK for up to three months.
• If EEA/Swiss nationals wanted to remain for longer than three months they would have to apply for a new status - European Temporary Leave to Remain - which would allow them to live and work in the UK for up to three years, with no direct option to apply for indefinite leave to remain

It was immediately evident that the proposals had inherent flaws. The new system would bring an end to free movement, but at a date that was to be determined after we exited the EU and once the Immigration and Social Security Co-ordination (EU Withdrawal) Bill had been passed by Parliament. In an effort to avoid EEA/Swiss nationals being subject to checks at the border, which would require an immigration officer to ascertain whether they were resident before or after exit day, the policy document made clear that EEA/Swiss nationals would be able to use e-gates and enter as normal.  However, without a stamp in their passport to prompt them, this would create significant risks that new arrivals would fail to register for European Temporary Leave to Remain by the required deadline. This was compounded by the fact that employers would not have to check for this new status, meaning that unbeknown to both the employer and the employee, the employee could be working illegally.

These plans were though drafted by a Government actively seeking to avoid a no-deal scenario. The proposals were not properly thought through as they were originally drafted on a contingency basis, with no real expectation that they would ever be implemented.

Boris Johnson has been categorical that the UK will leave on 31 October 2019, ‘no ifs, no buts’.  A no-deal exit has therefore been made a real possibility, and the Government's no-deal plans are finally being properly scrutinised.

The leaked Government document shows that Home Office officials have major concerns about the previously published no-deal proposals. They think they are unworkable for employers and will lead to another ‘windrush’ scandal, by consigning a generation of EEA/Swiss nationals who are lawfully resident in the UK, from accessing basic services if they have not yet obtained evidence of their right to reside in the UK under the EU Settlement Scheme.

The Home Office officials make a sensible suggestion to avoid these issues. They have suggested allowing free movement to continue until January 2021, in line with the provisions of the withdrawal agreement, until the future immigration system envisaged in the immigration white paper has been put in place. This has however been dismissed by Government officials and the Home Office has confirmed that free movement will end on 31 October 2019, but with no indication on how a new system will differentiate between EU nationals resident before and after exit day.

What does this mean for EEA/Swiss nationals?

These developments are worrying on many levels. Firstly, the legal basis and the legislative path for bringing an end to free movement by the end of October are unclear. The press reports suggest the Government will try to bring free movement to an end by introducing secondary legislation, which does not require a parliamentary vote to pass into law. There are doubts that this is legally possible.  Even if the Government were to attempt it, Parliament would still have an opportunity to reject the legislation. This would leave the UK in limbo for weeks to come.

Secondly, we have no idea what the requirements of the new immigration system that will replace free movement will be. The deadline to apply for settled status is still 31 December 2020. There will therefore be many EU nationals travelling after 31 October who will not be able to show that they have been resident in the UK before exit day. We also have no idea currently how this will be managed at the border, with concerns that manual checks would require a level of resourcing that Border Force simply does not have.

Moreover, with European Temporary Leave to Remain being abandoned, new EEA/Swiss arrivals currently have no clue whether they will be able to work in the UK after 31 October.  This means that UK businesses have no idea whether they can recruit EEA/Swiss nationals for vacancies with a start date after exit. This will cause chaos for many industries that rely on European staff, particularly to cover busy seasonal periods such as Christmas.

The Home Office said yesterday that they are developing new plans which will be announced shortly. That such major changes are being prepared in such a tight time frame is quite simply staggering. It serves to compound the increasing levels of uncertainty and anxiety amongst EU nationals and the businesses that employ them. 

Going back to square one has only served to heighten the fear that the UK is simply not prepared for a no-deal exit. What is needed is for the Government to regain its senses and produce a realistic and coherent policy that allows for a measured end to free movement rather than an abrupt and chaotic one.

We have developed a suite of options to help businesses support their employees through Brexit, details of which can be found here. Please do get in touch with a member of the team to discuss if you’d like further information on the settled status process.