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Boris Johnson, Brexit and Business – what next for Free Movement of EU nationals?

On 12 December the UK elected another Conservative government, this time giving a large majority to the party. Now that any stalemate in parliament is broken, what does this mean for Brexit and the status of EU citizens living and working in the UK? This article looks to answer 5 of the big questions and assess when we can expect to see tangible change.

1.      Is Brexit going to happen?

The answer is almost certainly ‘yes’. The government is pro-Brexit and now has a sizeable majority in the House of Commons, meaning that it can pass the laws that it chooses. Prime Minister Boris Johnson has indicated that Brexit will be on the parliamentary agenda as early as 20 December, and he has a withdrawal agreement ready for MPs to vote on (preliminary acceptance of that deal was already given in October). The decision for parliament now is whether it wishes to accept Brexit with Johnson’s deal or risk no deal. It is widely expected that the Withdrawal Agreement Bill will pass, and that the UK will leave the EU with Boris Johnson’s deal in place.

2.      When will the UK leave the European Union?

The current deadline of 31 January is likely to be adhered to. The government does not wish to apply for any further extension, and that does not appear to be something that the electorate would support. It is therefore expected that that the UK has approximately 6 weeks’ EU membership remaining (at time of writing).

3.      How quickly will free movement come to an end?

Leaving with a deal is a better outcome for the UK than crashing out without one. By putting a deal in place, the UK and the EU agree to a post-Brexit transition period. This temporary phase acts to preserve current arrangements with the EU, meaning that there are no immediate changes. The plan is that new laws are phased in gradually, in a measured and orderly period of change. This includes the free movement of EU nationals, who would be permitted to enter the UK without additional requirements until the transition period expires on 31 December 2020, and then document themselves before a deadline of 30 June 2021.

The transition period will therefore end just 11 months after the planned Brexit date. Critics are concerned that this does not leave sufficient time for important changes to be made, such as trade agreements being put in place, or a new immigration system introduced. There is the possibility that the transition period could be extended (up to two years from the date of Brexit, so to 31 January 2022), but the government is expected to block this. It is being widely reported that provisions to prevent any extension to the transition period will be inserted into the Withdrawal Agreement Bill before it is put before parliament for approval.

4.      What are the plans for after the transition period?

A new immigration system is planned for January 2021, replacing the current rules which were not designed to encompass EU nationals. The new system will seek to make the system equal for EU and non-EU migrants and promises to simplify ways for UK employers to access skilled migrant workers. However, there are currently no long-term plans relating to certain significant categories of EU worker, such as those in occupations the government considers to be ‘low skilled’ (eg social care or hospitality). Employers are therefore expected to fill any gaps in their workforce with temporary short-term routes and to hire UK workers where possible.

5.      What should EU nationals do now?

EU nationals are encouraged to take steps to document themselves, making appropriate applications under the EU Settlement Scheme. Applications are free of charge and should be relatively straightforward for most EU nationals and their family members. Specialist assistance is available to those who struggle with the system or its requirements – notably those with an irregular work history or a criminal record.

6.      Should employers take any immediate steps?

It is sensible for employers to plan ahead for major changes coming in January 2021. EU rights do not change immediately and will be unchanged until the end of the transition period, but after that date, we are in uncharted territory. Planning your staffing requirements from January 2021 and beyond will require knowledge of the UK’s proposed – famously points-based – immigration system for migrant workers. It may be sensible for some employers to apply for a licence to sponsor overseas workers now.

Brexit does not alter the fact that many employers cannot find the skilled workers they need from the UK workforce. There may be existing visa routes which become valuable to employers (such as digital tech specialists applying under the exceptional talent option) or new/expanded schemes which aim to address shortages Brexit may create (a sector-based scheme is already in place for agriculture, for example). Employers are advised to stay up to date with new announcements and developments. Specialist law firms like Latitude will be able to assist in identifying practical solutions. 

With the end of the transition period and the documentation deadline of June 2021 (for EU citizens residing here before 30 December 2020), there will be new requirements for employers when performing right to work checks for their employees. Those changes are currently not expected earlier than July 2021, and employers should exercise caution if making significant decisions based on an individual’s right to work, bearing in mind obligations under employment law.