Brexit Update and it’s Frequently Asked Questions

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Brexit Update and it’s Frequently Asked Questions

2019-04-25T10:17:59+00:00 April 25th, 2019|All, HR News, Recruitment|

This article provides answers to some frequently asked questions relating to Brexit.

The responses are subject to change as Brexit develops.

When is Brexit?

UPDATE: Following a debate with EU leaders on Wednesday 10 April 2019, the UK has been offered an extension to “Exit Day” of 31 October 2019. Theresa May has reportedly confirmed that the UK can leave earlier than this, and potentially still by 22 May 2019, if Parliament can agree an exit deal.

As yet, the legislation has not been amended to reflect the change to Exit Day. The following legislation is still in place:

Entering into force on 28 March 2019, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, SI 2019/718 redefines exit day in section 20 of the European Union (Withdrawal) Act 2018, altering the date and time specified in that definition from 11pm on 29 March 2019 to:

  • 11pm on 22 May 2019 if MPs approve the Withdrawal Agreement by 29 March 2019, or
  • 11pm on 12 April 2019, if MPs do not approve the Withdrawal Agreement by 29 March 2019 – this remains the default position if an agreement cannot be found.

The 29 March 2019 has been and gone and we are yet to see a confirmed Brexit date. There are various options being discussed but none yet confirmed.


How do I check a European worker’s right to work?

You can see the latest government guidance on checking a European’s right to work here. 

  • The rights and status of EEA citizens living in the UK will remain the same until 30 June 2021 (31 December 2020 in a ‘no-deal’ scenario).
  • Deal – EEA citizens in or arriving in the UK by 31 December 2020 can continue to use their national ID card or passport as proof of right to work in the UK until 30 June 2021. They can apply to the EU Settlement Scheme until 30 June 2021 after which they will have to apply for leave to remain under the new immigration system to be introduced from 1 January 2021. See the Government right to work guidance 2019.
  • No deal – EEA citizens arriving in the UK before the 29 March 2019 will have until 31 December 2020 to apply to the EU Settlement Scheme and can use their national ID cards or passport until 31 December 2020. After that, if they haven’t applied for status they will have to apply via the new immigration system or leave the UK.
  • In a no deal, EEA citizens who arrive after 29 March 2019; and prior to the new skills based immigration system in 2021; will not be eligible for the EU Settlement Scheme unless they have previously lived in the UK prior to 29 March 2019 so will have to apply for status under the new immigration system or the European Temporary Leave to Remain scheme, if applicable.
In either scenario you should put right to work checks in your diary for affected workers well before the deadlines so that you can ensure continuity in your workforce provision. 
Will someone’s permanent residence document still be valid?

If you hold a permanent residence card you will still have to apply to the EU Settlement Scheme for a status decision to remain in the UK after 30 June 2021. EU settled status will allow you to be outside the UK for up to 5 years without losing your indefinite leave to remain.

Alternatively you could apply for British citizenship.

The UK and the EU have agreed that permanent residence documents or registration certificates will be invalid after Brexit.

See the government’s guidance on what to do if you have a permanent residence card. See the government’s general scheme guidance here.  See Fragomen’s guide to managing a migrant workforce here.

 

How can we establish and maintain our statutory excuse?

By carrying out the authorised right to work checks and complying with the Code of Practice on preventing illegal working you can establish and maintain a statutory excuse against employing an illegal worker even if it turns out that they are in fact illegally working in the UK.
The checks as they stand now for EEA nationals will be applicable until 30 June 2021 (31 December 2020 in a ‘no-deal’) for EEA citizens who enter the UK before 31 December 2020 after which they will have to prove their immigration status (gov.uk guidance on proving your status as an EU national).  
The need to establish and maintain a statutory excuse only applies to employment that began on or after 29 February 2008. The date on which a person’s employment started on or after 29 February 2008 will determine what right to work checks apply to establish a statutory excuse.
What rights do EU nationals have to come to work in the UK after Brexit? 

Do we need to end assignments on 29 March 2019 for EU nationals? 

There is no requirement to end assignments or make roles redundant if they are filled by EU nationals. There are protections in place for EU nationals in the event of a deal or a no deal to ensure they can remain in the UK to live, work or study.

Are Europeans going to be banned from entering the UK after Brexit? 

No. There are provisions in place to allow citizens from the European Economic Area to remain and enter the UK to work, live and study in the event of both a deal and a no deal.

Deal

What is the EU Settlement Scheme?

The rights and status of EEA citizens living in the UK will remain the same until 30 June 2021.

Those EEA citizens already in the UK and those EEA citizens that arrive in the UK by 31 December 2020 will be eligible to apply to the EU Settlement Scheme for settled (indefinite leave to remain) or pre-settled (limited time to remain) status up to 30 June 2021. If they fail to make an application for settled or pre-settled status they will have to leave the UK or apply for leave to remain under the new immigration system being introduced on 1 January 2021.

If the EEA person has previously lived in the UK with indefinite leave to remain but they have been out of the UK for more than 2 years they will have to contact the Home Office to see if they are eligible to return on the same terms or whether they have to apply for a status decision via the EU Settlement Scheme.

Pre-settled status, if granted, will allow an EEA citizen to stay in the UK for 5 years. The EEA citizen can then apply for settled status if they meet the requirement of 5 continuous years living in the UK.

Successful applicants will be given digital proof of their status. Paper copies will only be given in limited circumstances. The worker will be able to prove their right to work online. The government guidance suggests that this will be enough to prove their right to work but for official guidance on checking right to work via online settled status we will have to wait for the Home Office to update their right to work guide.  See the government’s tool to check whether a worker’s documents give them the right to work.

EU Settlement Scheme – are Irish citizens exempt?

There are some people who won’t need to apply to the EU Settlement Scheme as can be seen in the list here including Irish citizens.

What is the app called for applying to the EU Settlement Scheme? 
‘EU Exit: ID Document Check’ – see the government’s guidance here.  
  • only available on android phones with near-field communication (NFC) via their app store. It allows you to quickly and securely confirm your identity as part of your application to stay in the UK after Brexit. If successful, you will not have to send in hard copy documents when applying via the online scheme.
  • You will still have to send in physical documents if you are unable to use the app because you do not use an android phone.
See the new tool from the government – Online right to work check for employers.

No-deal

EU Settlement Scheme or European Temporary Leave to Remain scheme?

See the Government’s policy paper on ‘no-deal’ Brexit here.  

EEA citizens who arrive prior to 29 March 2019 will have until 31 December 2020 to apply to the EU Settlement Scheme. They can use their national ID cards/passports as right to work identification until 31 December 2020.
EEA citizens who arrive after 29 March 2019; and prior to the new skills based immigration system in 2021; will not be eligible for the EU Settlement Scheme unless they have previously lived in the UK prior to 29 March 2019.

If they aren’t eligible for the EU Settlement Scheme they will still be able to enter the UK as normal to live, work or study for up to 3 months without making an application for immigration status or a working visa.

If they wish to stay longer than 3 months they will have to apply for European Temporary Leave to Remain (ETLR) in the UK within the first 3 months they are in the UK. Some people won’t have to apply to the ETLR; the exceptions can be seen on the ELTR government guide.

If successful they will be able to stay in the UK for a maximum of 36 months after which they will need to leave the UK or apply to stay longer under the new skills-based immigration system starting on 1 January 2021.
The government reached an agreement with Norway, Iceland and Lichtenstein to protect citizens’ rights between the UK and European Free Trade Association states on 8th February 2019.
Skills-based immigration system January 2021
The detail of the proposed new immigration system to take effect from 1 January 2021 is yet to be confirmed but you can see the Government’s detailed White Paper, ‘The UK’s future skills-based immigration system’ here. The new system proposes to end free movement for EU nationals but maintain a trade deal, whilst forging new trade deals with other countries that will allow the citizens of those countries freedom of movement in the UK.
Dual nationality
The UK allows dual citizenship; you can be a UK national and a national of another country. Some countries do not allow dual nationality. See Government guidance on dual citizenship. What implication this will have is dependent on what deal or no deal Brexit is achieved and as yet there has been nothing confirmed.
UK workers in the EU after Brexit

Some information can be seen in the government’s policy paper on ‘no-deal’ Brexit here.

Essentially, the UK is negotiating to protect the rights of UK workers in the UK but they are unable to do so unilaterally and as such are reliant on agreement from the EU. You can access further guidance:

UK Nationals in the EU >>

Living in Guides >>

Travel Advice >>

Data Protection after Brexit

What happens about data transfer to and from the EU? 

The GDPR has been written into our domestic legislation in the Data Protection Act 2018.

Department for Digital, Culture, Media & Sport, the Department for Business, Energy and Industrial Strategy and the Information Commissioner’s Office have set up a task force to look at the impact of a no deal Brexit. At this stage they are engaged on a fact finding exercise. If there is a no-deal Brexit or, if the eventual deal does not cover data protection, the UK will require an ‘adequacy decision’ in order to for EU countries to be able to transfer personal data to the UK post Brexit. But the EU have said that they will not start discussions with the UK about this unit after Brexit and this could take up to 18 months.

There is more information from the ICO and government below:

VAT

What happens with VAT between the UK and Europe in a ‘no-deal’ scenario? 

The VAT regime that will apply will depend on the exit agreement. You can see government guidance from August 2018 about no-deal Brexit VAT here.

What will happen to the VAT reverse charge after Brexit? 

This applies to the construction sector only. The REC has been in talks with HMRC about its application to the recruitment sector band they have indicated that it will not apply to recruitment businesses because a recruitment business is not providing construction services. HMRC has advised that they are to release guidance on this point in May 2019.

VAT generally

The VAT regime that will apply generally between the UK and EU countries that will depend on the exit agreement. You can see government guidance from August 2018 about no-deal Brexit VAT here.

Discrimination Law after Brexit
What is the law currently? 
Please see the REC’s legal guide to the Equality Act 2010. This section will be updated with any changes.

Will it change after Brexit?

EU employment law provides a minimum standard below which domestic employment law must not fall. The UK government have made a commitment to ensure that workers’ existing rights are retained.

 

What are the technical notices that keep being mentioned?

Government guidance on how to prepare for a no-deal Brexit – technical notices.