Further information has been released by the Home Office on the right to work of EU nationals entering the UK on or after 30 March and the right to work checks which employers will need to undertake for EEA nationals after that date, in the event of a ‘no deal’ Brexit.

EU nationals entering the UK on or after 30 March

If the UK leaves the EU on 29 March without a deal, EU nationals entering the UK on or after 30 March who wish to stay longer than three months will need to apply to the Home Office for leave to remain within three months of arrival. Subject to identity, criminality and security checks, leave to remain will be granted for 36 months, which will include permission to work and study.

This leave to remain will be non-extendable, temporary leave so those who wish to stay longer-term will need to apply in due course under the future border and immigration system arrangements from 2021. There may be some employees who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.

Right to work checks

A no deal Brexit could potentially make right to work checks more complex although the Home Office has advised employers to rely on the government communication which was recently announced setting out a grace period for employers conducting right to work checks on EU nationals up to 31 December 2020.

As an additional measure, employers are advised to print off the statement at paragraphs 12-13 (see below) and retain this on file along with the regular right to work check copies such as the passport for an EEA citizen or residence document for the non-EEA national family member.

12. Until all resident EU citizens and their family members who are eligible for the EU Settlement Scheme have had a reasonable opportunity to apply for and be granted status, which will be by the end of December 2020, we will not ask employers or other third parties, such as landlords, to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.

13. Once the new border and immigration system is introduced from 2021, employers and others will need to check EU citizens’ status using the Home Office’s Digital Status Checker, but not retrospectively. Until 2021, EU citizens will continue to be able to evidence their rights to work and to rent property using a passport or national identity card, and non-EU family members will use a biometric residence document

Next steps

The challenge for employers is that new hires who are EU nationals and who have not previously been living and working in the UK prior to 30 March will be allowed to work for up to 36 months as if under the old regulations but may find that they are not eligible to continue to work in the UK beyond then. We do not yet know what the new system from 2021 will look like or whether there will be any additional transitional provisions. The safest approach is to ensure that continued employment is conditional on being granted permission to work in the UK after 31 December 2020 / at the expiry of the 36 months’ leave to remain. Employers may also wish to consider entering into fixed term contracts with such EU nationals, which are only renewed in 2021 in the event that they gain permission to continue working in the UK.

Please contact the employment team if you have any questions about this or other employment related issues.

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