The Immigration Minister’s comments before the Home Office affairs select committee sparked controversy last week. Caroline Nokes explained that, after 29 March 2019, in a no-deal scenario, employers will be expected to check EU citizens’ right to work, and landlords to check EU citizens’ legal status, mirroring the rules as they have been in place for non-EU citizens since 2014.
Her interpretation of rights seem to be contradictory to provisions in the EU Withdrawal Act (also known as the Great Repeal Bill) and its detailed rules in Appendix EU. The latter has implemented the EU settlement scheme directly through the Immigration rules and is in force since 28 August 2018. Currently, under that scheme, EU citizens are invited to apply for settled status once the EU settlement scheme is fully open, by March 2019. The deadline for applying will be 30 June 2021. The Home Office appears to plan that the current regime of permanent residence (permanent residence document or registration certificate) is applicable until 31 December 2020. This would at least be the case if a deal is done, during the implementation period. – in any event, those who have obtained permanent residence can apply for the new proposed settled status in a free of charge, streamlined procedure.
In the event of a deal, the EU Withdrawal Act and EU citizens’ rights will be supported by the EU-UK Withdrawal agreement. Because of reciprocal rights envisaged for UK citizens in the EU, it is likely that existing rights of EU citizens will be strengthened.
Even in a no-deal scenario, the European Withdrawal Act should give interim protection to EU citizens under domestic law for settled and pre-settled status, as described above. But the main risk for EU citizens’ rights in a no-deal scenario, is for this to be renegotiated after the Brexit date, however any change will be subject to parliamentary approval.
Now, the minister’s comments show that legal uncertainty appears to be continuing, even regarding one of the areas of Brexit, where the government has conceded rights and implemented them.
As we all know, the government’s dealing with Brexit has been (at times) disorganised and the above described shows that even in areas thought to be negotiated and clear, uncertainty is overshadowing the achieved.
It is therefore paramount for employers, and in their own interest, to take their EU citizens’ worries seriously. To get ready for all eventualities, firms should be closely monitoring the situation and offer support to their EU citizens. Our advice, in the meantime, remains unchanged: EU citizens should secure their rights as soon as possible and get the best possible immigration status now. Individuals, knowing their rights and having them documented with an EEA permanent residence card, a British passport, when eligible, or with the upcoming settled status confirmation will be sleeping better through the Brexit night of 29/30 March 2019. – And for afterwards.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP November 2018
